[Senate Hearing 115-96]
[From the U.S. Government Publishing Office]




                                                         S. Hrg. 115-96
 
 CONSERVATION, CONSULTATION, AND CAPACITY: STATE VIEWS ON THE NEED TO 
                  MODERNIZE THE ENDANGERED SPECIES ACT

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

                                HEARING

                               before the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 10, 2017

                               __________

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

                     ONE HUNDRED FIFTEENTH CONGRESS
                             FIRST SESSION

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

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

                              ----------                              
                                                                   Page

                              MAY 10, 2017
                           OPENING STATEMENTS

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..     1
Barrasso, Hon. John, U.S. Senator from the State of Wyoming......     3

                               WITNESSES

Wiley, Nick, Executive Director, Florida Fish and Wildlife 
  Conservation Commission........................................     4
    Prepared statement...........................................     7
    Responses to additional questions from:
        Senator Barrasso.........................................    27
        Senator Carper...........................................    31
    Response to an additional question from Senator Booker.......    37
Voyles, Larry, Director, Arizona Game and Fish Department........    45
    Prepared statement...........................................    47
    Responses to additional questions from:
        Senator Barrasso.........................................    66
        Senator Carper...........................................    75
Coit, Hon. Janet, Director, Rhode Island Department of 
  Environmental Management.......................................    84
    Prepared statement...........................................    87
    Responses to additional questions from:
        Senator Barrasso.........................................    94
        Senator Carper...........................................    97
    Response to an additional question from Senator Booker.......   105
    Responses to additional questions from Senator Duckworth.....   105


 CONSERVATION, CONSULTATION, AND CAPACITY: STATE VIEWS ON THE NEED TO 
                  MODERNIZE THE ENDANGERED SPECIES ACT

                              ----------                              


                        WEDNESDAY, MAY 10, 2017

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:37 a.m. in 
room 406, Dirksen Senate Office Building, Hon. John Barrasso 
(Chairman of the Committee) presiding.
    Present: Senators Barrasso, Carper, Inhofe, Capito, Wicker, 
Fischer, Rounds, and Ernst.
    Senator Barrasso. Good morning. I call the Environment and 
Public Works Committee to order and like to defer to the 
Ranking Member, Senator Carper.

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

    Senator Carper. I thank the Chairman.
    I apologize to our witnesses, some of whom have come quite 
a distance. The Democratic leader in the Senate has called for 
an emergency caucus meeting to discuss the issues leading up to 
the dismissal of James Comey as our FBI Director and to discuss 
how we might move quickly to ensuring that a special prosecutor 
is assigned and put to work right away.
    If I have the opportunity to return at the end of our 
caucus meeting, I will come back, and perhaps some of my 
colleagues will as well.
    I really appreciate the Chairman's understanding of this 
and giving me a chance to give the opening statement first.
    Good to see you all. Thank you. This is important stuff.
    I am very interested, and I know my colleagues are, to 
learn more from our State witnesses about your experiences with 
the Endangered Species Act, the roles that States play, the 
partnerships that they have cultivated, and the lessons that 
you have learned, the challenges that you face, and what you 
think we need to know. I am not sure we could have gathered a 
more knowledgeable or relevant panel. Altogether, our witnesses 
represent nearly a century of natural resource, environmental, 
as well as fish and wild, experience, which leads me to believe 
you must have started very early in your lives.
    This is our second Endangered Species Act hearing this 
year. I would like to emphasize a couple points that struck me 
from our first hearing on this very important issue. The first 
is that the world is experiencing an exponential increase of 
species in peril. The International Union for the Conservation 
of Nature has declared that almost one-third of all known 
species of plants and animals, some 22,000-plus species, are 
currently at risk of extinction.
    The second is that there are so many species ending up on 
the endangered list. If, as we will hear from our witnesses 
today, States are concerned about and equipped to handle 
species conservation in their States, then why are so many 
species in trouble? Are there funding challenges? Are there 
legal challenges?
    The Endangered Species Act should be the last backstop 
against extinction, and the evidence clearly shows that when 
States, when Federal agencies, when stakeholders collaborate 
effectively, we can better prevent species from being listed in 
the first place.
    We established at our last hearing that there is generally 
ample notice that species are at risk. Often, biologists and 
citizens know years and sometimes even decades in advance that 
a plant or an animal is in trouble. Governor Freudenthal 
disclosed at our earlier hearing that until recently, despite 
this notice, States really haven't focused on all those non-
game species that are struggling, and therefore their status 
becomes critical and a source of contention.
    The question is, then, are States focusing on them now? How 
much and with what resources? And how effectively? Hopefully, 
our State experts here today can help us appreciate the lay of 
the land and thus help us understand what the Federal 
Government needs to do to be a better partner to get this 
critical job done.
    I have to say, the numbers are not encouraging. I 
understand that States spend about a quarter of what the U.S. 
Fish and Wildlife Service invests to protect Endangered Species 
Act listed and candidate species. If we include all the Federal 
agencies spending, the collective State investment is, I think, 
about 4 percent. Granted, this likely means we need to invest 
more in our States. But it also means that States have some 
soul searching to do. And if you need the ESA and the Federal 
agencies to back you up because you will not or cannot carry 
this burden, then we need to know that.
    Congress always intended endangered species protection and 
restoration to be a joint and collaborative effort among 
Federal agencies and their State partners, and a host of 
landowners, along with business interests, and 
conservationists. Our goal should be to make sure we are firing 
on all cylinders given the magnitude of trouble our fellow 
inhabitants on this planet face today.
    I say these things with the greatest of respect, as a 
recovering Governor, for the work that you do and the unique 
capacity you have to understand the challenges in your States, 
how best to resolve them, and the partnerships that you need to 
reach these goals. But in this particular instance you are 
front and center in a fight not only for State interests, but 
also a national concern for species that are part of our 
natural heritage. These plants and animals travel and disperse 
with little concern for our political boundaries.
    If indeed you tell us it is time to modernize this crucial 
Act, then please let us know how the changes you propose will 
make all of us better equipped to conserve, to protect, and to 
restore these plants and critters and places that they call 
home. This isn't just our legal obligation; I think it is our 
collective moral duty as well.
    Mr. Chairman, I deeply appreciate the chance to go first, 
and I hope I have a chance to come back and be with all of you 
a bit later this morning. Thank you so much.

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

    Senator Barrasso. Thank you very much, Senator Carper. I 
think, as you know, the Democrats have invoked the 2-hour rule. 
That means this hearing will only go until about 11:30 this 
morning, which is 2 hours after the Senate gaveled in. So we 
will be adjourning at 11:30.
    Today, the Environment and Public Works Committee continues 
its efforts to consider feedback from State officials on the 
need to modernize the Endangered Species Act.
    The Endangered Species Act was enacted in 1973 to conserve 
species identified as endangered or threatened with extinction, 
and to conserve the ecosystems upon which those species depend. 
State governments, particularly their State fish and wildlife 
agencies, play a central role in fulfilling the Endangered 
Species Act's mission.
    Some have tried to argue that the Federal Government, not 
the States, is the only entity capable of saving endangered 
species, and that the States should take a back seat on 
wildlife conservation for species at risk of extinction. Well, 
endangered species don't care whether the Federal Government or 
a State government protects them; they just want to be 
protected.
    Combined, our nation's 50 State fish and wildlife agencies 
are a formidable wildlife conservation machine. Since enactment 
of the Endangered Species Act almost 45 years ago, State fish 
and wildlife agencies have enhanced their staff, their 
expertise, their habitat management techniques, their science 
capability, their relationships with private landowners and 
local communities, and political support. And again, these are 
the State fish and wildlife agencies.
    According to a 2014 to 2015 survey of State fish and 
wildlife agencies conducted by the Association of State Fish 
and Wildlife Agencies, our States' wildlife conservation 
machine is comprised of 50,000 highly trained and highly 
motivated employees, including 11,000 degreed wildlife 
biologists, 10,100 law enforcement officers, 6,000 employees 
with advanced degrees, 2,211 employees solely dedicated to 
educating and informing the public about wildlife conservation 
issues. An additional 190,000 volunteers nationwide devote 
their time and energies to wildlife conservation in support of 
State agencies.
    In recent years, State governments and their State fish and 
wildlife agencies have increasingly voiced concerns that the 
Endangered Species Act isn't living up to its conservation 
potential. So have counties, wildlife managers, homebuilders, 
construction companies, farmers, ranchers, and other 
stakeholders.
    The Endangered Species Act impacts us all. Ninety-nine 
point 4 percent of all the 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 by the National Association of Counties. So we must all be 
concerned when the Endangered Species Act isn't living up to 
its conservation potential.
    We are fortunate that national and regional stakeholder 
groups have already been working for several years in 
bipartisan ways to identify challenges with the Endangered 
Species Act and opportunities to make the statute work better.
    In March 2016 the Association of Fish and Wildlife Agencies 
adopted a set of principles to modernize implementation of the 
Endangered Species Act, to better promote fish and wildlife 
conservation, and to better facilitate the participation of 
landowners and other stakeholders.
    In June 2016 the Democrat and Republican Western Governors' 
Association unanimously adopted the Western Governors' 
Association's Endangered Species Act policy under the 
leadership of Wyoming Governor Matt Mead. The Association of 
State Fish and Wildlife Agencies, the Western Governors' 
Association, other bipartisan groups, and individual 
stakeholders consistently hit on three themes when they discuss 
ways to modernize the Endangered Species Act.
    Conservation. How can the Act better incentivize 
conservation activities to, No. 1, avoid listing of species as 
endangered or threatened, and No. 2, recover species when they 
are listed as endangered or threatened?
    Consultation. How can the Act better facilitate the Federal 
Government's consultation with State and local governments so 
that decisionmaking is based on the best available information 
and State and local capacity is adequately leveraged?
    Capacity. How can the Act provide sufficient resources to 
fulfill the mission of the Act and better allocate those 
resources to species most in need?
    According to feedback from across the nation and across the 
political spectrum, modernization of the Endangered Species Act 
in these areas could lead to better outcomes for imperiled 
species, for government entities, for private parties and other 
stakeholders.
    So I look forward to hearing more from our witnesses about 
common sense, bipartisan opportunities to modernize and 
strengthen the Endangered Species Act to make it work better 
for wildlife and for people.
    We would now like to hear from our witnesses, starting with 
Nick Wiley, who is the Executive Director of the Florida Fish 
and Wildlife Conservation Commission and the President of the 
Association of Fish and Wildlife Agencies.
    Thanks so much for joining us today.

         STATEMENT OF NICK WILEY, EXECUTIVE DIRECTOR, 
       FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION

    Mr. Wiley. Good morning, Chairman Barrasso and Ranking 
Member Carper and members of the Committee. I appreciate the 
opportunity to speak with you today. My remarks will represent 
the views of the Florida Fish and Wildlife Conservation 
Commission and the Association of Fish and Wildlife Agencies, 
or AFWA.
    My views regarding the Endangered Species Act are shaped by 
over 31 years of experience as a professional wildlife 
biologist and a State fish and wildlife agency administrator. 
During this time, I have been fortunate to work in Florida, 
where we have an amazing diversity of fish and wildlife 
resources featuring a number of iconic species that have been 
benefited from listing under ESA, including bald eagles, 
manatees, Florida panthers, sea turtles, and American 
crocodiles.
    My direct experience and work with States across the nation 
reflect that ESA has served our nation well as a strong tool 
for protecting and recovering species that are on the brink of 
extinction. State fish and wildlife agencies really value and 
appreciate how ESA has driven many conservation success 
stories.
    We also see firsthand, however, that ESA has not adapted 
well to the tremendous changes across our nation's conservation 
landscape. Federal agencies do not have sufficient capacity or 
funding to keep pace with ESA workloads, resulting in delays 
and litigation.
    The ESA is often viewed by private landowners and 
businesses with great trepidation rather than opportunity for 
cooperative conservation. It is troubling that the primary 
purpose for the ESA has shifted over time from an effective 
focus on rescuing species from the brink of extinction to a 
broad brush that perpetuates the highest level of Federal 
regulatory protection even when the threat of extinction has 
been eliminated and ongoing protection is assured under State 
management.
    State fish and wildlife agency directors generally believe 
the ESA is not performing as it should and is not sufficiently 
leveraging State agency expertise and cooperation. We believe 
there are many areas where ESA should be improved, refocused, 
and modernized to effectively deal with the scope, scale, and 
complexity of today's conservation challenges.
    When we talk about modernizing ESA, we are talking about 
improving how ESA is administered and implemented. We are 
talking about optimizing partnerships with State agencies and 
better utilizing our growing expertise and conservation 
capacity. And we are also talking about keeping ESA decisions 
in the hands of conservation professionals at State and Federal 
agencies, rather than in the judicial system.
    With these concerns in mind, AFWA developed a list of 
general principles for improving ESA. These principles were 
developed by State ESA practitioners and calibrated with the 
Western Governors' Association and the National Governors' 
Association, reflecting the national scope and significance of 
ESA. We are hopeful the ideas and recommendations presented in 
AFWA's general principles will inspire and guide a constructive 
and collaborative path to a more effective ESA.
    Coupled with improving ESA, we also believe that addressing 
the life needs and habitat requirements of declining species to 
prevent ESA listing is more prudent and more economically and 
biologically sound approach to managing species that are 
otherwise trending toward listing. Through State wildlife 
action plans, the State agencies have identified species of 
greatest conservation need and key actions needed to conserve 
them. We want to continue working with Congress to more fully 
fund this preventative approach through legislation like the 
Recovering America's Wildlife Act introduced last Congress.
    State fish and wildlife agencies want to be even more value 
added in ESA implementation to the degree we each have capacity 
and funding authority. We are suggesting an opt in approach 
that opens doors for the fullest cooperation with State 
agencies that have or will develop capacity and concurrent 
authority. We are not suggesting that all 50 States are ready 
to fully engage, but many are, if we can get a seat at the 
table.
    Yet, the way ESA is constructed and interpreted, State 
agencies can be involved in key decisions only at the 
discretion of Federal agencies. Although section 6 requires a 
maximum extent practicable cooperation, this provision has 
never been fully realized. As the primary trustee for fish and 
wildlife resources, State agencies should have the option to 
serve as a full jurisdictional partner in all ESA processes and 
decisions, as originally intended by Congress.
    We believe conservation of our fish and wildlife resources, 
particularly protecting and recovering endangered species, is 
at the core of our American values. The current version of ESA 
accomplished much, and we should be proud of this. But we can't 
afford to let ESA rest on its laurels and continue to decline. 
The time is ripe for ESA to be upgraded to a more cooperative 
model, and we are hopeful for strong bipartisan support to move 
this forward.
    Thank you, and I welcome your questions.
    [The prepared statement of Mr. Wiley follows:]
    
    
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    Senator Barrasso. Well, thank you so much for your 
thoughtful testimony.
    I would like to now turn to Mr. Larry Voyles, who is the 
Director of the Arizona Game and Fish Department and the former 
President of the Association of Fish and Wildlife Agencies.
    Thank you for joining us, Mr. Voyles.

             STATEMENT OF LARRY VOYLES, DIRECTOR, 
                ARIZONA GAME AND FISH DEPARTMENT

    Mr. Voyles. Thank you, Chairman Barrasso and Ranking Member 
Carper. I am Larry Voyles, and I am pleased to be here speaking 
to you today as Director of Arizona Game and Fish.
    My career has put me in a position that I believe enables 
me to shed light on some important aspects of the Endangered 
Species Act. I have gained the insights through a 42-year 
career with the Department, including 9 years as Director, and 
I served under three Governors from both sides of the aisles, 
both Republican and Democrat.
    I have also served as past President of the Association of 
Fish and Wildlife Agencies. I am a charter member on the State 
and Federal Joint Task Force on ESA Administration. I serve a 
special detail to the U.S. Fish and Wildlife Service, and I am 
a member of the Office Strategy Team that convened legal 
scholars to recommend enhancements to the ESA that would 
significantly improve conservation of imperiled species, and 
hopefully so dramatically that bipartisan support in Congress 
can be assured.
    Scholars first surveyed State directors, assessing their 
willingness to be more deeply involved in ESA administration, 
and in that survey more than 90 percent of directors surveyed 
overwhelmingly affirmed their willingness. ESA is an essential 
tool to conserve America's imperiled wildlife. It is an Act, 
however, that shows its age. It is time to modernize the Act to 
take advantage of the unparalleled conservation capacity of 
most of today's State fish and wildlife agencies.
    My experience with the ESA tells me that it is critically 
important that we strengthen the provisions in section 6 of the 
ESA. Section 6 states, ``In carrying out the program authorized 
by this Act, the Secretary shall cooperate to the maximum 
extent practicable with the States.'' Those are clear and 
straightforward words, but as you will note in my written 
testimony, not so simple in practice. Nearly 44 years after 
enactment, Federal agencies still have not promulgated rules to 
guide in administering these simple phrases.
    Now, what is it about that that I think makes it so 
important? It is important for us to foster cooperation 
intended by section 6 because State fish and wildlife agencies 
bring a wealth of resources and authorities that enable us to 
conserve endangered species far more effectively when that 
cooperation can be optimized.
    For a moment, please consider what makes this true. 
Consider that the importance of the States to effectively care 
for our nation's threatened and endangered species can be 
evaluated two ways: quantitatively and qualitatively. This may 
sound a little repetitive because the Chairman already visited 
these numbers, but quantitatively, the resources provided by 
States collectively are impressive and factually eclipse that 
of their Federal partners, demonstrated by the following 
figures:
    State and wildlife agencies own, manage, or administer 
conservation on more than 464,000,000 acres of land and 
167,000,000 acres of lakes, reservoirs, and wetlands; State and 
wildlife agencies employ nearly 50,000 people and leverage the 
efforts of 190,000 volunteers; States employ 11,000 wildlife 
biologists--that is nearly the entire work force of the U.S. 
Fish and Wildlife Service--and 10,000 wildlife enforcement 
officers; nearly 6,000 of our employees hold advanced degrees; 
and States' collective budgets contributes $5.6 billion toward 
wildlife conservation annually.
    Qualitatively, States have achieved unrivaled successes and 
are crucial to accurate decisionmaking in all phases of 
endangered species conservation. This can clearly be seen in 
one example from my State. The Arizona Game and Fish Department 
collected data and published peer reviewed papers on Sonoran 
Desert tortoises for nearly 30 years. Contrary to claims in 
listing petitions, our quality data and expertise established 
an accurate picture of Desert tortoise conservation needs while 
delivering conservation actions precluding the need for listing 
the species. This reduced regulatory impacts to much of 
Arizona's landscape.
    Another prime example of the multitude of State led efforts 
is the lesser prairie-chicken conservation program in five 
western States administered by the Western Association of Fish 
and Wildlife Agencies. Voluntary cooperation of States, 
landowners, land management agencies, and industry has 
conserved 16 cites, totaling 133,000 acres. The species 
populations are stabilizing and the endowed funding exceeds $50 
million.
    My professional experience spending virtually the life of 
the ESA shapes my final thought. The ESA is an important tool 
for conserving America's imperiled wildlife that has become 
stagnant and needs modernizing. Neither Federal nor State 
agencies alone can meet the conservation challenges we face. 
States must have the opportunity to elect participation in 
listing decisions, recovery planning and implementation, 
developing private landowner conservation incentive programs, 
and decisions to down-list or de-list species. Only our working 
together under an ESA that mandates effective cooperation with 
States delivers the capacity needed to conserve imperiled 
species into the future.
    Thank you.
    [The prepared statement of Mr. Voyles follows:]
    
    
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    Senator Barrasso. Well, thank you so much for being with us 
today and for your testimony.
    I would like to next turn to Janet Coit, who is the 
Director of the Rhode Island Department of Environmental 
Management.
    Thanks so much for being with us today. Welcome to the 
Committee.

STATEMENT OF HON. JANET COIT, DIRECTOR, RHODE ISLAND DEPARTMENT 
                  OF ENVIRONMENTAL MANAGEMENT

    Ms. Coit. Good morning, Chairman Barrasso and members of 
the Committee. It is good to be here. My name is Janet Coit, 
and I am the Director of the Rhode Island Department of 
Environmental Management. We oversee the fish and wildlife 
agency and also have authority over all of the environmental 
protection and natural resource laws. I have worked under two 
Governors and been the Director for 6 years, and am proud to 
now work for Governor Gina Raimondo.
    Testifying before the Senate Environment and Public Works 
Committee today is really an honor and a little bit surreal. I 
worked as a professional staff member and the counsel for the 
Committee many, many years ago, leaving 20 years ago, right 
when this Committee was about to report out the Kempthorne-
Chafee-Baucus-Reid Endangered Species Recovery Act. And even 
though that was two decades ago, I just wanted to spend a few 
moments talking about that experience, and I think it does bear 
looking at that bill, S. 1180.
    That was reported by a bipartisan vote of 15 to 3 after a 
very extensive process. We had 3 years of negotiations and 
hearings. It was wonderful to work for Senator John Chafee, who 
was the fantastic Republican Chairman of this Committee who 
held conservation values very dear. He liked to quote Yogi 
Berra, and he would say ``you can see a lot by looking,'' and 
given that philosophy, we did many, many field hearings.
    And we went to Wyoming and talked to ranchers about black-
footed ferrets; we traveled with John Turner, who was the 
Director of the U.S. Fish and Wildlife Service. We went and met 
power companies and timber companies. We talked to farmers and 
ranchers and took a look at what was actually happening, and it 
was very, very clear then, and is now, that the Endangered 
Species Act has a very different impact and reputation in 
different regions of this country.
    So I am pleased to give you the Rhode Island perspective, 
and also my perspective, which is a different one; it is one of 
a policy staffer for the EPW Committee who now is overseeing a 
State agency with considerable budget constraints, a very 
important and critical mission, and really the need to have 
public engagement and buy in if we are going to be successful.
    So turning to some of the major points I want to make. The 
time is moving too fast here. So, first, strong Federal role, 
critical. Until the Endangered Species Act was enacted in 1973, 
signed into law by Richard Nixon, we didn't have a really 
strong set of legal authorities to protect threatened and 
endangered species, so that Act is really one of the finest 
conservation laws in the world and has had many, many 
successes. And it is critical to have that Federal backstop to 
ensure that, whatever happens, we know we have authorities to 
protect threatened and imperiled species.
    So I just want to say that I know everyone here and my 
comments, too, are about making the Act more successful. More 
successful for conservation, more successful for State 
agencies. We are all geared toward doing that, and there is a 
tremendous workload, and it would be wonderful if you could 
have a bipartisan bill as you did 20 years ago.
    I think this Committee is known for working through 
intractable issues with respect, and I think that a lot of work 
will be needed in order to get a bipartisan Endangered Species 
Act modernization bill, but that it is possible if people are 
very thoughtful and take a look at how this Act touches down so 
that we don't undermine some of the work that is needed in 
places like Rhode Island in the northeast while we listen to 
some of the experiences from the West.
    The next point I want to make is just to endorse the need 
for strong State agency engagement. We are the boots on the 
ground. Our biologists are foresters, and we are intermittently 
involved in the community, so we know both the conservation and 
the science, but also the industries and the companies, the 
landowners that we need to work with. So full participation and 
engagement of the State agency is critical in listing 
decisions, in recovery plans, in monitoring, in outreach, in 
collaboration.
    And I can say that in the northeast, with Region 5, we have 
a very close working relationship, and that gets me shortly to 
my point about the New England cottontail. But Wendi Weber, the 
head of Region 5, has been terrific at reaching out to the 
States to collaborate.
    Adequate resources. I won't repeat what my colleagues have 
said, but the adequate resources for conserving species are 
critical to any reforms, and an ounce of prevention is worth a 
pound of cure. We all want to keep species from getting on the 
list. That is the success. And once on, getting them off.
    So I want to again mention the State wildlife action plans. 
We put a tremendous amount of working into those, working with 
stakeholders, and they are really serious science based 
documents with lists of critical species and with strategies, 
and they help us spend resources wisely. So the States have 
those plans. Unfortunately, at least in my State of Rhode 
Island, we don't really have sufficient resources to carry them 
out.
    Let me just summarize one last point. The New England 
cottontail is a great example of how an imminent listing 
motivated people to get together really coordinated or kicked 
off by the U.S. Fish and Wildlife Service, but then with the 
States as equal partners, the Wildlife Management Institute 
administered the process, and by doing that we were able to 
take a species that was about to be listed, that had lost 86 
percent of its habitat, and prevent it from being listed so 
that Secretary Jewell was able to announce that listing was not 
warranted.
    And we have a whole cadre of private landowners, partners, 
and excited folks who are working together on conserving the 
New England cottontail, and we have captive breeding programs, 
and we are seeing that species, and the 65 other species that 
depend on that young forest habitat, flourish because of the 
way we worked collaboratively across many States.
    Then I will just end by saying what you have so many times 
in this Committee, that one size does not fit all. We are very 
resource constrained. Fortunately, the sportsmen and women of 
this country have seen to it that we have funding for game 
species. It has been decades that we have been looking for an 
adequate source of funding for non-game species.
    In a State like mine, 80 to 85 percent of the funds we have 
are already restricted to game species. It is very difficult to 
find the resources to put toward our engagement with the 
Endangered Species Act or the whole host of non-game species 
that are under our authority and stewardship as a State agency.
    So thank you. I look forward to any questions, and thank 
you very much for having me.
    [The prepared statement of Ms. Coit follows:]
    
    
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    Senator Barrasso. Well, thank you. We appreciate you being 
here.
    For my colleagues on the Committee, since the Democrats 
have brought into play the 2-hour rule, we are going to have to 
adjourn at 11:30, which gives each of us time for questioning. 
But to make sure each of you have the time, I will turn to 
Senator Inhofe first, and I will reserve my time.
    Senator Inhofe. Thank you, Mr. Chairman. I appreciate that.
    Let me remind you, Director Coit, that the experiences that 
you shared with us 20 years ago with John Chafee, that was my 
first year. He also came to Oklahoma, if you remember, and 
studied our system. So you are right, he had eyes on all the 
time.
    Director Voyles, you are the guy that brought up the lesser 
prairie-chicken. You know, we had the wide conservation plan, 
five States. Oklahoma, my State was one of those States. And we 
worked hard. We worked for a long period of time. We had 
meetings in all five of the States, and we came up with some 
conclusions as relates to the lesser prairie-chicken. And even 
though we went through all that work, in fact, we went through 
so much work that a Texas court came in and said that the fish 
and wildlife was violated because they didn't consider properly 
the conservation plan that was put forward. So right now we are 
in the process of looking at this and seeing what we can do.
    But there doesn't seem to be any incentives for people to 
really work with these conservation efforts. I would like to 
have you give us your opinion as to the seriousness of that 
particular conservation effort and why they are not 
incentivized in our system to participate.
    Mr. Voyles. Senator Inhofe, Senator Barrasso, the lesser 
prairie-chicken, I think, is the classic example of what States 
can do when they integrate together and work with partners both 
in the private sector as well as the public sector. It is 
plowing ground to the future, I think of the way conservation 
will be done. Fifty million dollars of investment, hundreds of 
thousands of acres of lands and road, and yet there was a 
finding by the U.S. Fish and Wildlife Service that the species 
needed to be listed. The courts disagreed with that.
    I would argue that the lack of a formal process for the 
States to be at the table in the decision process for listing 
leaves a hole, and I think there is a certain balance value in 
having the State wildlife agency being able to be a part of 
that discussion.
    Senator Inhofe. I think that Director Wiley suggested the 
same thing. I think that is well taken.
    Director Wiley, did you want to comment in terms of some of 
the ideas you have? It is not real clear in your written 
statement whether or not you had some type of a State 
intervention, a trigger point, where States would be involved 
and take over the function of the Federal Government. Is that 
accurate?
    Mr. Wiley. Well, in a couple different ways, yes, sir. And 
I agree fully that States don't have enough of a formal role in 
the decisionmaking process. We do get involved early on and try 
to collaborate and partner, but then the curtain closes. And 
the way things are constructed, we kind of have to sit outside 
and wait for decisions.
    We believe one idea is right now we have classification 
where you have threatened species and endangered species. We 
believe the original intent was for once a species is no longer 
warranted for listing as endangered, it is changed to a 
threatened status, that the States should then take the lead in 
managing that species.
    Senator Inhofe. Exactly. Which reminds me also in Oklahoma 
we have the American burying beetle, and it fits in the 
categories that should be. Fish and Wildlife seems to move the 
goalpost. They come out and say this is what we want to 
accomplish, and then, once you accomplish that, they move the 
goalpost, and that is one of the problems that we have.
    In the case of the American burying beetle, its listing was 
only known to be in eastern Oklahoma and Block Island, Rhode 
Island. So you are familiar with that also.
    Now, since the listing, science has used all these things. 
The problems have been pretty much resolved. Now, I think that 
shows that, since the inception of the Endangered Species, 
there have been 1,652 listings and only 40 de-listed in terms 
due to recovery. So, to me, it shows that that system is 
broken.
    And I think this hearing is really good. Already some 
really good recommendations have been made by this Committee. 
So we want to get through all of our questioners, but I really 
think, Mr. Chairman, this is going to be one of the real 
accomplishments of this coming year, something we have worked 
on for a long time, since I was there with John Chafee 20 years 
ago.
    Thank you.
    Senator Barrasso. Well, thank you, Senator Inhofe, for your 
ongoing leadership over the decades.
    Senator Wicker.
    Senator Wicker. Let me ask you about private landowners. 
Private landowners working with the U.S. Fish and Wildlife 
Service in partnership. Of course, our goal is to get all sides 
involved in working on ways in which we can accommodate private 
landowners and conserve species at the same time.
    Mr. Wiley, do you think the Endangered Species Act needs 
clarity on the ability of the U.S. Fish and Wildlife Service to 
work in partnership with private landowners in order to use 
innovative measures such as Memorandums of Agreement that do 
not require Federal Register notice, but are negotiated 
directly with landowners?
    Mr. Wiley. Yes, sir, Mr. Chairman. Yes, sir. We feel like a 
lot of work could be done to clarify in the law the importance 
of private landowners and the importance of working with 
landowners to achieve conservation. The Fish and Wildlife 
Service does make an effort, and that should be applauded, but 
right now their hands are tied in many cases. Landowners view, 
in many cases, a listing as a very serious threat to how they 
use their land. We believe there is a lot better way forward if 
the States can be more engaged and more involved working on the 
ground, because we have those relationships and we feel like we 
can really be helpful.
    Senator Wicker. Well, as I understand it, there are 
landowners in Mississippi with more than 4 million acres who 
are seeking to do this. In what ways are their hands tied?
    Mr. Wiley. Well, first, there's a serious workload issue as 
far as just the time it takes when you have a willing coalition 
of landowners like these forestry landowners that want to sit 
down and say what can we do to take conservation measures and 
put in place now. There's a time lag. It takes years, in many 
cases, to develop, even when the parties are agreeable. It just 
takes years to pull those things together just from a workload 
case; it's a time consuming process. And beyond that, right now 
the administrative rules are kind of all over the board and are 
not very clear as far as what landowners can and can't do, and 
how the right type of conservation programs that can be put in 
place.
    Senator Wicker. Is there some recommendation you would have 
to this Committee about streamlining the rules or making the 
process more efficient?
    Mr. Wiley. Yes, sir. We have actually a suite of 
recommendations we believe that would really be helpful, 
particularly moving from rules to actual overarching 
legislation and law.
    Senator Wicker. OK. Now, you mentioned a backlog in that 
regard. What about the backlog of species petitions awaiting 
review by the U.S. Fish and Wildlife? Do you think 12 months is 
enough time to craft a U.S. FWS approved voluntary conservation 
plan for interested stakeholders, for example?
    Mr. Wiley. With current capacity, it is not for the volume 
that we are having to deal with, the Fish and Wildlife Service 
and NOAA Fisheries. It is not enough time.
    Senator Wicker. What do you recommend?
    Mr. Wiley. We recommend applying a workplan approach, a 
prioritization approach. But also actually looking at the 
species that are being petitioned and the threats, and putting 
them in the proper order and priority. And some may take more 
time; some might be feasible to do more quickly. Right now it 
is just a shotgun, everything is coming all at once, and it is 
hard to handle it. And the Service has taken some steps in that 
regard, but we have some ideas on how to move that further 
along.
    Senator Wicker. How do you set a different time on an ad 
hoc basis, though?
    Mr. Wiley. I don't think it would be on an ad hoc basis. I 
think you could set it up, frame it up for the law to have some 
flexibility so that when the experts look at a species as it 
comes in, they can then make decisions about where it would fit 
into that framework of timelines.
    Senator Wicker. Thank you very much.
    And thank you, Mr. Chairman.
    Senator Barrasso. Thank you, Senator Wicker.
    Senator Rounds.
    Senator Rounds. Thank you, Mr. Chairman.
    First of all, let me just say that, after having had the 
opportunity to work as Governor in South Dakota for 8 years, I 
have a huge amount of respect for the individuals that work at 
the local level with regard to game and fish, recreational 
opportunities, management of those game species and no-game 
species.
    I look at the South Dakota Game Fish and Parks, and the 
amount of work that they have done and the amount of respect 
that they garner in the work that they do, and the cooperative 
way in which they try to put together local agreements with 
landowners, trying in an affirmative way to create good 
relationships so that the recreational opportunities of our 
citizens are enhanced and the availability to access private 
lands and so forth.
    Along with that, they have that obligation and 
responsibility to work with the Federal Government and U.S. 
Fish and Wildlife Service to fulfill our responsibilities with 
regard to the Endangered Species Act, and I think they do a 
marvelous job of balancing those challenges.
    I am just curious. Director Voyles, you said in your 
testimony that you explain that the authority of section 6 
cooperative agreements allows for States to have a greater or 
greater opportunities to participate in the implementation of 
the ESA. But you also mention that State agencies have not been 
able to exercise this authority due to misunderstandings and 
misinterpretation by the Federal executive branch agencies and 
courts.
    Could you elaborate on how executive agencies and courts 
have misinterpreted section 6 authority and how this has 
impacted the ability of States to participate effectively in 
ESA implementation?
    Mr. Voyles. Thank you, Senator Rounds, Mr. Chairman. What 
we found in the administration of section 6 is the focus has 
primarily been, from the Federal agencies has primarily been on 
applying section 6 to a shared funding opportunity, but not the 
full suite of opportunities for the States to participate at 
the table in collaboration on ESA related decisions and 
processes.
    As an example, during the 90-day petition review process, 
where they take a look to determine if a species warrants a 
further analysis and a 100-day recommendation of other lists or 
not, State data, unless it is conveyed and in the files of the 
Federal agencies beforehand, the courts have ruled they cannot 
access that data and information from the States. Clearly, the 
intent of the ESA was that we would be working together 
collaboratively. Yet, we have a legal determination that we 
cannot.
    There is no hardwiring of the States in terms of our 
ability to participate on recovery teams and recovery planning. 
That is a decision at the will of the U.S. Fish and Wildlife 
Service, as to whether they include a representative from the 
State; and they will make the determination who that 
representative will be. That is not really the full 
relationship that was envisioned, I don't believe. I believe 
section 6 was intended to be the balancing of the 10th 
amendment concerns and issues of the States, and it is not 
functioning that way.
    Senator Rounds. Thank you.
    Mr. Chairman, just in the interest of time, I will yield 
back the remaining part of my time.
    Senator Barrasso. Thank you very much.
    Senator Capito.
    Senator Capito. Thank you, Mr. Chairman. I will just ask 
one question here that I am interested in.
    I am interested in the topic is sort of the consistency 
with which the Fish and Wildlife enforce and makes specific 
actions. We all realize States are different, but in our State 
we have had some concerns from our State regulators that Fish 
and Wildlife has been inconsistent in its approach for 
requiring habitat protections in the State, even compared with 
what they are doing in other States. And in particular, rather 
than going through the formal rulemaking to designate critical 
habitat, they have been establishing buffer zones. And these 
buffer zones are critical habitat in all but name, but they 
haven't been through the subject of the formal rulemaking, 
public notice, or comment.
    As a result, it is unclear, the footprints are unclear. 
There has been no consideration for the economic impact and 
even has impacted some of our ability to do some reclamation 
activities.
    I am just wondering have either or all three of your States 
had that inconsistency, and have you had this issue with buffer 
zones being created instead of critical habitat?
    Ms. Coit. I will start and say, no, we haven't had that 
experience. If I can harken back to the New England cottontail 
example, that was an example where up front there was an 
agreement on conservation on the ground and what we would all 
strive to do. And the NRCS is actually the Federal agency that 
is helping us work with private landowners and doing those 
agreements rather quickly, and I think that is because we set 
out in advance, working collaboratively equally with the U.S. 
Fish and Wildlife Service on what the goals would be. So I 
would say our experience in Rhode Island is a very 
collaborative experience with the U.S. Fish and Wildlife 
Service, and NMFS, as well.
    Senator Capito. And consistent? Either of the two?
    Yes, Mr. Voyles.
    Mr. Voyles. In Arizona, we have not had the experience with 
buffers, but what we have had is we have had an application of 
principles applied to how we can manage or deal with a given 
species that varies and is sometimes diametrically opposed to 
what is allowed for another species. So species to species 
there are inconsistencies in the way the rules are applied.
    Also, we have had situations where the Colorado River is a 
major dividing line between regional offices for U.S. Fish and 
Wildlife Services, so Region 2 is on the east side of the river 
and Region 8 is on the west side of the river. And we have had 
opposing decisions on what we can do as far as stocking rainbow 
trout ruled by one office in the same water that is being ruled 
the other way by the other office. So there are geographic 
inconsistencies, but right up on the same river.
    Senator Capito. On the same river.
    Mr. Wiley.
    Mr. Wiley. Yes, Mr. Chairman. Yes, I would say that we 
haven't had that buffer experience, but we have seen how things 
are different in different parts of the country in different 
States. To me, one way to help is, because how well States 
collaborate with each other and we share information, I think 
having a seat at that table, being there when that decision was 
made to consider buffers versus critical habitat as a 
workaround, maybe, I think we would have called them on that, 
and we would have been there saying there is a better way. So 
that is why we are looking for more of an open door there.
    Senator Capito. All right. Thank you.
    Thank you, Mr. Chair.
    Senator Barrasso. Thank you, Senator Capito.
    Senator Ernst.
    Senator Ernst. Thank you, Mr. Chair.
    Mr. Voyles, in your testimony you spoke about the 
importance of State agency participation in the implementation 
of ESA, and over the years, despite their on the ground 
experience and expertise, States have not always had as much 
say in the process as they would have liked. From your time at 
the Game and Fish Department, can you provide an example of a 
time when both a species and stakeholders would have been 
better served had the Federal Government taken more State data 
or recommendations into account?
    Mr. Voyles. Thank you, Senator Ernst, Mr. Chairman. I can 
think of several instances. One example would be a very 
politically divisive recovery effort, the Mexican wolf. There 
has been a 25-year effort to revise the recovery plan for 
Mexican wolf. The original recovery plan was developed in the 
1980s, and it is outdated.
    It has been extremely politically divisive, and in the 
process, at one point in time, we had to fight for a seat at 
the table to be a part of the recovery plan process. And when 
we were fighting for that seat, the recovery team that was 
convened, the Science and Planning Subgroup, had no ungulate 
biologist on the team. There was nobody that understood 
population dynamics for the prey species that those wolves 
would have depended upon. That is what we do for a living; we 
had the expertise. And we ultimately got a seat, but we had to 
fight our way in. It was not easy.
    That should be a hardwired event. We shouldn't have to try 
and fight a way in and bring political pressure to bear to be 
able to get a seat at that table. And it was important that we 
were there because some of the population dynamics they were 
pursuing would have failed. There simply wasn't the prey base 
to be able to support the kind of wolf numbers that they were 
talking. So that is an example of having to kind of scratch and 
claw to get in, as opposed to being a full partner, as 
envisioned in section 6.
    Senator Ernst. So you think that just by having the State 
involved from the very beginning in those discussions, that a 
lot of conflict would have been avoided and perhaps a better 
plan would have been put in place?
    Mr. Voyles. Absolutely. And we still don't have a revised 
plan. Now, we do have a full seat at the table now; it has been 
reconstituted, and I think we have more powerful science coming 
to bear now. We have improved their modeling a great deal by 
bringing State scientists into the picture, and I think we have 
a lot, hopefully a better trajectory on the next route, on a 
final hope for a revision. I think that could have reduced this 
25-year timeline by orders of magnitude.
    Senator Ernst. Thank you. I appreciate that, and I do think 
States should be involved, especially when they have the 
expertise actually in dealing with a certain species.
    Ms. Coit, in your testimony you also emphasize the 
importance of State fish and wildlife agency participation in 
ESA implementation. You noted that conservation efforts would 
be aided by increasing the utilization of data from State 
agencies. Are Federal partners ignoring or are they choosing 
not to use State data in favor of their own data?
    Ms. Coit. We have recently had a very good experience. I 
think it has evolved and improved over time. So the U.S. Fish 
and Wildlife Service and NMFS is using State data, and we are 
sharing data. I think they are extremely open to that in Rhode 
Island, and we have had that experience, but it has gotten 
better over time, according to my staff. In some areas we have 
the capacity and expertise, and in other areas we don't; it 
might be a university or another entity. So I think we are all 
wanting the absolute science to come into the process so the 
decisions can be made on science.
    Senator Ernst. So is there a lack of communication in those 
examples?
    Ms. Coit. I am bringing the Rhode Island experience. We 
have a very good working collaborative relationship with the 
U.S. Fish and Wildlife Service and NMFS. A lot of our 
endangered species conflicts are in the marine environment.
    Senator Ernst. OK. Fantastic.
    I will yield back my 17 seconds, Mr. Chair. Thank you.
    Senator Barrasso. Thank you very much, Senator Ernst.
    In the little time that is left, Director Wiley and Voyles, 
at our hearing in February, Gordon Myers, the Executive 
Director of the North Carolina Wildlife Resources Commission, 
who also served as President of the AFWA's southeastern 
association, he testified that State governments have enhanced 
their capacity really over the past 30 years to make greater 
contributions to implementation of the Endangered Species Act.
    Do you agree with Director Myers that States are in a much 
better position today than they have ever been before to 
contribute to the conservation and recovery of the species 
under the Endangered Species Act?
    Mr. Wiley. Mr. Chairman, we absolutely do. There are States 
that are still working to get there. We are all working to do 
better, but if you look at the transition and transformation of 
State fish and wildlife agencies over the last 20, 30 years, it 
is amazing what we can do and what we are doing, and I really 
think now is the time to give some regard to that.
    Senator Barrasso. Thanks.
    And Mr. Voyles.
    Mr. Voyles. Mr. Chairman, if you noted on my bio, I started 
in professional wildlife conservation the year after ESA was 
implemented, and at that time we had one biologist on staff 
that was what we called a non-game biologist. I have over 100 
people now on staff that deal with conservation of non-hunted 
and non-fish species. Clearly, Arizona has grown exponentially 
in our ability to deal with ESA listed species, as well as 
species at risk.
    The other thing that I want to point out is State wildlife 
agencies are an incubator of innovation, and some of the 
innovative solutions that are taking place, and I think the 
lesser prairie-chicken example really highlights that, there is 
a $50 million endowment that has been built by partnerships 
with industry.
    Some of those States, if you were to ask what is your 
appropriation for endangered species, they might not look so 
spectacular, but they have generated an endowment through 
partnerships that enables them to be very effective. In our 
State, we have contracts operation where we are able to deal 
with species outside of our appropriation methodology through 
contracts that range $7 million to $10 million a year of 
revenue streams for unique operations.
    So that kind of innovation is coming out of the States, and 
we are really, I think, at the cutting edge of public-private 
partnership in America.
    Senator Barrasso. Well, our time has expired.
    Ms. Coit, I had a question for you, but I am not going to 
go beyond the rules of the Senate. It has to do with how much 
money is available and the impact of the Equal Access to 
Justice Act, the book, Inside the Equal Access to Justice Act, 
where Lowell Baier talks about just how much money of Federal 
taxpayer dollars is spent per year on environmental litigation 
relating to the Endangered Species Act, and it sounds like how 
little money you get, and how we can best make sure that the 
money goes in the right direction. But I will submit that 
question to you in writing, consistent with the rules of the 
Senate.
    This hearing is now adjourned. Thank you.
    [Whereupon, at 11:31 a.m. the Committee was adjourned.]
    [Additional material submitted for the record follows:]
    
    
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