[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]






               H.J. RES. 29; H.J. RES. 46; H.J. RES. 49;  
             AND H.R. 1213, ``RESCUE WHALES ACT OF 2023''

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

                          LEGISLATIVE HEARING

                               before the

             SUBCOMMITTEE ON WATER, WILDLIFE AND FISHERIES

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________

                        Tuesday, April 18, 2023

                               __________

                           Serial No. 118-17

                               __________

       Printed for the use of the Committee on Natural Resources





[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]








        Available via the World Wide Web: http://www.govinfo.gov
                                   or
          Committee address: http://naturalresources.house.gov 
          
                             _________
                              
                 U.S. GOVERNMENT PUBLISHING OFFICE
                 
51-897 PDF                 WASHINGTON : 2023 
          
          
          
          
          
          
          
          
          
          
          
          
          
          
          
          
          
      

                     COMMITTEE ON NATURAL RESOURCES

                     BRUCE WESTERMAN, AR, Chairman
                    DOUG LAMBORN, CO, Vice Chairman
                  RAUL M. GRIJALVA, AZ, Ranking Member

Doug Lamborn, CO
Robert J. Wittman, VA
Tom McClintock, CA
Paul Gosar, AZ
Garret Graves, LA
Aumua Amata C. Radewagen, AS
Doug LaMalfa, CA
Daniel Webster, FL
Jenniffer Gonzalez-Colon, PR
Russ Fulcher, ID
Pete Stauber, MN
John R. Curtis, UT
Tom Tiffany, WI
Jerry Carl, AL
Matt Rosendale, MT
Lauren Boebert, CO
Cliff Bentz, OR
Jen Kiggans, VA
Jim Moylan, GU
Wesley P. Hunt, TX
Mike Collins, GA
Anna Paulina Luna, FL
John Duarte, CA
Harriet M. Hageman, WY

                                     Grace F. Napolitano, CA
                                     Gregorio Kilili Camacho Sablan, 
                                         CNMI
                                     Jared Huffman, CA
                                     Ruben Gallego, AZ
                                     Joe Neguse, CO
                                     Mike Levin, CA
                                     Katie Porter, CA
                                     Teresa Leger Fernandez, NM
                                     Melanie A. Stansbury, NM
                                     Mary Sattler Peltola, AK
                                     Alexandria Ocasio-Cortez, NY
                                     Kevin Mullin, CA
                                     Val T. Hoyle, OR
                                     Sydney Kamlager-Dove, CA
                                     Seth Magaziner, RI
                                     Nydia M. Velazquez, NY
                                     Ed Case, HI
                                     Debbie Dingell, MI
                                     Susie Lee, NV

                    Vivian Moeglein, Staff Director
                      Tom Connally, Chief Counsel
                 Lora Snyder, Democratic Staff Director
                   http://naturalresources.house.gov
                                 ------                                

             SUBCOMMITTEE ON WATER, WILDLIFE AND FISHERIES

                       CLIFF BENTZ, OR, Chairman
                      JEN KIGGANS, VA, Vice Chair
                   JARED HUFFMAN, CA, Ranking Member

Robert J. Wittman, VA                Grace F. Napolitano, CA
Tom McClintock, CA                   Mike Levin, CA
Garret Graves, LA                    Mary Sattler Peltola, AK
Aumua Amata C. Radewagen, AS         Kevin Mullin, CA
Doug LaMalfa, CA                     Val T. Hoyle, OR
Daniel Webster, FL                   Seth Magaziner, RI
Jenniffer Gonzalez-Colon, PR         Debbie Dingell, MI
Jerry Carl, AL                       Ruben Gallego, AZ
Lauren Boebert, CO                   Joe Neguse, CO
Jen Kiggans, VA                      Katie Porter, CA
Anna Paulina Luna, FL                Ed Case, HI
John Duarte, CA                      Raul M. Grijalva, AZ, ex officio
Harriet M. Hageman, WY
Bruce Westerman, AR, ex officio























                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, April 18, 2023..........................     1

Statement of Members:

    Bentz, Hon. Cliff, a Representative in Congress from the 
      State of Oregon............................................     2
    Huffman, Hon. Jared, a Representative in Congress from the 
      State of California........................................     3
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     5
    Stauber, Hon. Pete, a Representative in Congress from the 
      State of Minnesota.........................................     6

Statement of Witnesses:

    Panel I:

    Guertin, Stephen, Deputy Director for Policy, U.S. Fish and 
      Wildlife Service, Washington, DC...........................     7
        Prepared statement of....................................     9
    Horton, Rick, Executive Vice President, Minnesota Forest 
      Industries, Grand Rapids, Minnesota........................    14
        Prepared statement of....................................    16
    Flippence, Fred, Board President, Oregon Rural Electric 
      Cooperative Association, Hines, Oregon.....................    18
        Prepared statement of....................................    20
    Fischman, Robert, Professor of Law, Indiana University Maurer 
      School of Law, Bloomington, Indiana........................    23
        Prepared statement of....................................    25
    Hineman, Don, Past President, Kansas Livestock Association, 
      Dighton, Kansas............................................    29
        Prepared statement of....................................    31

    Panel II:

    Rauch, Sam, Deputy Assistant Administrator for Regulatory 
      Programs, National Marine Fisheries Service, Silver Spring, 
      Maryland...................................................    52
        Prepared statement of....................................    53
        Questions submitted for the record.......................    56

    Semanko, Norman, General Counsel, Family Farm Alliance, 
      Boise, Idaho...............................................    57
        Prepared statement of....................................    58
    Moore, Michael, Senior Scientist, Woods Hole Oceanographic 
      Institution, Woods Hole, Massachusetts.....................    64
        Prepared statement of....................................    66

    Brown, Curt, Marine Biologist, Ready Seafood, Cape Elizabeth, 
      Maine......................................................    71
        Prepared statement of....................................    73
    Olsen, Ginny, Political Director, Maine Lobstering Unions, 
      Stonington, Maine..........................................    74
        Prepared statement of....................................    75

Additional Materials Submitted for the Record:

    Submissions for the Record by Representative Huffman

        USFWS range map for northern long-eared bat..............    85
        Various organizations, Letter to Committee opposing H.J. 
          Res. 29, H.J. Res. 46, and H.J. Res. 49................    87
        Various organizations, Statement for the Record 
          supporting H.R. 1213...................................    90
        National Audubon Society, Letter to Committee opposing 
          H.J. Res 29, H.J. Res. 46, and H.J. Res. 49............    94
        National Parks Conservation Association, Statement for 
          the Record opposing H.J. Res. 46 and H.J. Res. 49......    95  
 
    LEGISLATIVE HEARING ON H.J. RES. 29, PROVIDING FOR 
 CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5, UNITED 
 STATES CODE, OF THE RULE SUBMITTED BY THE UNITED STATES FISH 
 AND WILDLIFE SERVICE RELATING TO ``ENDANGERED AND THREATENED 
WILDLIFE AND PLANTS; LESSER PRAIRIE-CHICKEN; THREATENED STATUS 
  WITH SECTION 4(D) RULE FOR THE NORTHERN DISTINCT POPULATION 
    SEGMENT AND ENDANGERED STATUS FOR THE SOUTHERN DISTINCT 
POPULATION SEGMENT''; H.J. RES. 46, PROVIDING FOR CONGRESSIONAL 
DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5, UNITED STATES CODE, OF 
  THE RULE SUBMITTED BY THE NATIONAL MARINE FISHERIES SERVICE 
 RELATING TO ``ENDANGERED AND THREATENED WILDLIFE AND PLANTS; 
 REGULATIONS FOR LISTING ENDANGERED AND THREATENED SPECIES AND 
  DESIGNATING CRITICAL HABITAT''; H.J. RES. 49, PROVIDING FOR 
 CONGRESSIONAL DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5, UNITED 
 STATES CODE, OF THE RULE SUBMITTED BY THE UNITED STATES FISH 
 AND WILDLIFE SERVICE RELATING TO ``ENDANGERED AND THREATENED 
  WILDLIFE AND PLANTS; ENDANGERED SPECIES STATUS FOR NORTHERN 
  LONG-EARED BAT''; AND H.R. 1213, TO AMEND THE CONSOLIDATED 
   APPROPRIATIONS ACT, 2023 BY REPEALING CERTAIN PROVISIONS 
RELATING TO NORTH ATLANTIC RIGHT WHALES, ``RESCUE WHALES ACT OF 
                             2023''

                              ----------                              


                        Tuesday, April 18, 2023

                     U.S. House of Representatives

             Subcommittee on Water, Wildlife and Fisheries

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 10:33 a.m. in 
Room 1334, Longworth House Office Building, Hon. Cliff Bentz 
[Chairman of the Subcommittee] presiding.

    Present: Representatives Bentz, LaMalfa, Gonzalez-Colon, 
Luna, Duarte, Hageman, Westerman; Huffman, Peltola, Hoyle, 
Magaziner, Porter, and Grijalva.
    Also present: Representatives Mann, Stauber; and Golden.

    Mr. Bentz. The Subcommittee on Water, Wildlife, and 
Fisheries will come to order.
    Good morning, everyone. I want to welcome the Members, 
witnesses, and our guests in the audience to today's hearing, 
specifically the electric co-ops. I am glad you are here. I see 
a lot of familiar faces. Thanks for joining us this morning.
    We are going to have fewer people here this morning up on 
the dais than is normal because we have conflicting hearings, 
some going on just a few feet down the hallway.
    Without objection, the Chair is authorized to declare a 
recess of the Subcommittee at any time.
    Under Committee Rule 4(f), any oral opening statements at 
hearings are limited to the Chairman and the Ranking Minority 
Member. I therefore ask unanimous consent that all other 
Members' opening statements be made part of the hearing record 
if they are submitted in accordance with Committee Rule 3(o).
    Without objection, so ordered.
    I ask unanimous consent that the gentleman from Minnesota, 
Mr. Stauber, be allowed to participate in today's hearing.
    Without objection, so ordered.
    We are here today to consider four legislative measures: 
H.J. Res. 29, a resolution providing congressional disapproval 
of the listing of the lesser prairie chicken under the 
Endangered Species Act, sponsored by Representative Mann; H.J. 
Res. 46, a resolution providing congressional disapproval of 
the rescission of the Trump Critical Habitat Rule sponsored by 
myself; H.J. Res 49, a resolution providing congressional 
disapproval of the listing of the northern long-eared bat under 
the Endangered Species Act, sponsored by Representative 
Stauber; and H.R. 1213, the Rescue the Whales Act, sponsored by 
Full Committee Ranking Member Grijalva.
    I now recognize myself for a 5-minute opening statement.

  STATEMENT OF HON. CLIFF BENTZ, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF OREGON

    Mr. Bentz. This hearing is a much-needed focus on how the 
ESA is or is not working--the ESA, of course, the Endangered 
Species Act. It is almost 50 years old now, and it is well 
intended, but certainly not perfect. Only 3 percent of listed 
species have been recovered, while existing listings and ESA 
regulations have been used as tools that many times harm 
communities, particularly those in rural America.
    This Administration has made matters worse by rewriting 
regulations on critical habitat and uplisting of species 
without appropriate safeguards. And I am going to address my 
CRA, H.J. Res. 46, here in my opening remarks. This CRA would 
repeal this rule.
    And I went back and read through part of it this morning in 
an effort to remind myself of the impact of the reversal of the 
rule that had been passed by the Trump administration. Although 
incredibly complicated, the bottom line is that if my CRA is 
adopted, the rule that the Biden administration would have in 
place would go away. And in its place there would remain the 
management plans imposed by either the Forest Service or the 
BLM or other Federal agencies.
    In other words, when we talk about the fact that if this 
rule is repealed, some folks might say that is going to leave 
the spotted owl and other species endangered or in recovery 
mode unprotected. That would not be true. And in fact, what you 
will hear today is that there are many situations where the 
U.S. Fish has not coordinated with the BLM, or the Forest 
Service, or OSC land folks, and what we end up having are 
conflicting regulations that confuse and delay and make the 
situation worse, rather than better.
    Just a few words about how my CRA would address issues in 
Oregon, although it applies much more broadly. The spotted owl 
habitat that has been designated as such, it was around 9 
million acres. Under the Biden rule, it was reduced to 6 
million acres. Excuse me, under the Trump rule reduced to 6 
million acres, and under the Biden revised rule increased back 
to 9 million. And what my CRA would do is take it back to 6 
million.
    What is really going on here? The question is what is going 
on on the 3 million acres that would be removed from this 
protection afforded by what the Biden rule does. And the short 
answer is almost nothing. And the reason is that the Forest 
Service and the BLM have power over that land, and its 
management plans are addressing the spotted owl issue.
    The reason I incorporated my discussion of this particular 
CRA, mine, in this opening statement is that it illustrates the 
challenges that the Endangered Species Act imposes upon our 
country. And I just want to say I went back and found an 
article this morning that talked about the incredible cost that 
the Endangered Species Act imposes, and one of the articles I 
found was, whatever the cost of the Endangered Species Act 
might be, it is huge.
    Here is one of the problems. We don't calculate the true 
cost of these Acts. And by cost I don't mean just that which 
the agency spends, which is in the billions, but it is the cost 
of whatever doesn't happen; it is the cost of litigation; it is 
the cost of the lands that are not then appropriately utilized; 
it is the cost of the forest fires that then occur that could 
have been slowed, or even prevented, had we been allowed to get 
into the forest, but prevented from doing so by litigation 
based on the Endangered Species Act.
    So, yes, the idea underlying the Act is good. The 
implementation is challenged.
    There was a number that I mentioned some weeks ago in 
another hearing about what it was going to cost to recover the 
spotted frog, which is a species that is in my district. The 
number that was given to us by several groups was $2.9 billion, 
$2.9 billion for recovery of that particular species. If all of 
those species require that kind of money, they are not going to 
get protected because we don't have it.
    And with that, I am going to close and turn this over to 
the Ranking Member for his opening statement.

 STATEMENT OF HON. JARED HUFFMAN, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Huffman. Thank you, Mr. Chairman.
    I first want to acknowledge that we are, unfortunately, 
missing two expert witnesses today because the Majority decided 
to limit virtual remote engagement, which is something that is 
entirely doable in the year 2023. House Rules allow for it on a 
case-by-case basis. But, unfortunately, the Majority denied our 
request to allow Gary Frazer, the Department of the Interior's 
lead ESA expert at the Fish and Wildlife Service, to testify 
remotely because he has COVID. And the Majority denied our 
earlier request to hear remote witness testimony from an expert 
at the Center for Coastal Studies, who was literally rescuing 
whales from fishing gear today, but could have joined us 
remotely.
    Now, turning to the hearing, this year is the 50th 
anniversary of a very popular, successful environmental law: 
the Endangered Species Act. We should be celebrating it. 
Instead, the Republican Majority is continuing its unrelenting 
attack on policies that protect wildlife and endangered 
species.
    Fifty years ago, Republicans included some environmental 
champions. They joined with Democrats in passing the ESA and 
other bedrock environmental laws. A Republican President signed 
them into law. Today, the only thing more endangered than the 
species we will be talking about in this hearing seems to be 
Republican environmentalists. They are pretty close to 
extinction. And that is not only bad for wildlife, it is bad 
for conservation, and it is bad for America.
    The three resolutions in front of us today use 
Congressional Review Act procedures to repeal critical wildlife 
protections under the ESA. Let's be clear. Using the CRA to 
repeal ESA protections is an extreme measure. It locks in 
inadequate recovery policies and significantly limits Federal 
agencies' ability to use best available science to protect and 
recover species. CRAs like this are tantamount to legislating 
extinction.
    H.J. Res. 29 would do this for the lesser prairie chicken, 
delisting it and effectively blocking future listings at a time 
when its population faces near-certain extinction without 
protection due to degraded habitat. Instead of building on the 
success of recent tribal, state, and local efforts to conserve 
grassland habitat for this species, this resolution would 
overturn a very carefully crafted rule that complements those 
local efforts and provides certainty to agriculture, grazing, 
and others who utilize best management practices.
    H.J. Res. 49 applies the blunt instrument of the CRA to the 
endangered northern long-eared bat, downgrading it from 
endangered to threatened status. This bat's population is 
collapsing due to a fungal disease, but also due to habitat 
destruction and climate change. It was listed as endangered 
because wildlife managers specifically found, based on the best 
available science, that the lesser level of protection was 
inadequate to prevent this bat from going extinct.
    H.J. Res. 46 uses the CRA to hamstring NOAA's designation 
of critical habitat, which is a key recovery tool under the 
ESA. It would reinstate the Trump administration's narrow 
definition of habitat, which at best was confusing and at worst 
made it difficult to expand vital habitat necessary for the 
recovery of listed species.
    When Democrats and Republicans joined together to pass the 
ESA 50 years ago, the whole concept was to take politics out of 
species management and to trust experts by giving scientists 
and wildlife officials the necessary legal tools to save 
species from extinction. To make sure they get it right, 
Congress provided the backstop of judicial review.
    This was the radical environmentalism of Republicans like 
Richard Nixon 50 years ago. How sad that today's conservatives 
seem so hostile to conserving wildlife. These resolutions 
elevate pure politics over science-based wildlife management. I 
hope that even in today's GOP, there would be enough good sense 
to respect the spirit of the ESA, but I am not holding my 
breath.
    I would like to thank Professor Robert Fischman from 
Indiana for joining us today. He is a distinguished scholar 
specializing in environmental and conservation law, and we are 
fortunate to have him.
    And I do want to thank the Chairman for providing one bill 
on the agenda today that I can support: Ranking Member 
Grijalva's RESCUE Whales Act. This rescinds language from the 
2023 omnibus which poses an extinction threat to the Northern 
Atlantic right whale, a critically endangered species that 
faces a constant extinction threat from fishing gear 
entanglements and vessel strikes. This population was not doing 
well when we last had a hearing on this subject a few years 
ago, and it has crashed 30 percent since 2011. So, it 
desperately needs our help.
    Look, it is possible to love both lobsters and right 
whales. We can support the lobster fishermen without condemning 
right whales to extinction. And that is what Congress partially 
did last year when it set aside $20 million to support a quick 
transition to ropeless gear. I hope we can build on that.
    And I want to thank the Chairman for the time, and I will 
yield back.

    Mr. Bentz. Thank you. I will now introduce our first panel.
    As is typical with legislative hearings, the bills' 
sponsors are recognized for 5 minutes each to discuss their 
bills. With us today are Full Committee Ranking Member Raul 
Grijalva and Congressman Pete Stauber.
    I will now recognize Full Committee Ranking Member Grijalva 
for 5 minutes.

    STATEMENT OF HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF ARIZONA

    Mr. Grijalva. Thank you, Mr. Chairman and Ranking Member. 
And thank you, Mr. Chairman, for including the RESCUE Whales 
Act in this hearing.
    The bill helps to ensure the survival and recovery of the 
North Atlantic right whale by repealing the language in last 
year's appropriation bill that undermines the Endangered 
Species Act and the Marine Mammal Protection Act.
    That language was added at the last minute, did not go 
through any process, and enshrines regulations that don't do 
enough to protect right whales from fishing entanglements. The 
language undermines science-based Endangered Species Act and 
Marine Mammal Protection Act protections for right whales at a 
pivotal time, when less than 340 individuals remain. If current 
trends continue, we could see the right whale go extinct in the 
next 15 to 20 years.
    Entanglements in fishing gear are one of the top two 
threats to right whales. Whales can be entangled in fishing 
gear for years, preventing whales from reproducing and leading 
to fatal injuries. In fact, as we speak, rescue efforts are 
underway to disentangle a right whale in Cape Cod Bay. The 8-
year-old female was spotted in February, wrapped in thick, 
heavy fishing rope, cutting into her skin and trailing behind 
her. Without intervention, biologists believe that she will die 
from her injuries.
    As the Ranking Member indicated, we asked the Majority to 
allow the lead expert of the response team to testify remotely 
because he could not travel to DC due to the situation, and 
they denied our request.
    The RESCUE Whales Act restores science-based management of 
fisheries that interact with the North Atlantic right whale. 
Thousands of people make their living on the water, catching 
lobster and Jonah crab, and their families depend on that 
income. We must protect their livelihoods. Unfortunately, until 
the right whales are adequately protected, the lobster fishery 
will have a public relations problem that Congress cannot 
solve.
    Luckily, a solution already exists that provides whales and 
keeps folks on the water, which is ropeless gear. NOAA, the 
states, and the fisheries must collaborate to transition 
American lobster and Jonah crab fisheries to ropeless gear 
technology that protects whales and allows fishing in areas 
that would otherwise be off limits. Strong science-based ESA 
MMPA protections will help make the conservation a reality. 
That is why the RESCUE Whales Act is so important.
    Last year, Congress enacted a grant program for developing 
and deploying technology to protect right whales and provide 
$20 million for ropeless gear. We must get ropeless gear out on 
the water as quickly as possible.
    I am grateful Dr. Moore is with us today to speak to the 
threats that the North Atlantic right whales face from 
entanglement, and how the RESCUE Whales Act can reduce these 
threats. I look forward to that testimony.
    And Mr. Chairman, I yield back. Thank you.

    Mr. Bentz. Thank you. I now recognize Representative 
Stauber for 5 minutes.

    STATEMENT OF THE HON. PETE STAUBER, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MINNESOTA

    Mr. Stauber. Chairman Bentz and Ranking Member Huffman, 
thank you for allowing me to join your Subcommittee today.
    The Endangered Species Act is half a century old. Its 
intended use was for listing species, conserving the species, 
and then returning that species back to responsible management. 
Unfortunately, like any well-meaning law, it is being abused by 
an activist class of lawyers and others ideologically opposed 
to any sort of human progress. The true goal is not species 
conservation in their mind. It is list the species, then stop 
the development, then file a lawsuit if needed, and then 
fundraise, rinse, and repeat.
    But don't just take my word for it. Take the Center for 
Biological Diversity's word for it. When they learned that the 
moose will not be listed, they were quoted in the Minneapolis 
Star Tribune as saying out loud, and I quote, ``Now it is going 
to be a lot harder to ensure that things like mines and other 
habitat-destroying projects don't go forward.'' That is why it 
is important we move these CRAs.
    I am a co-sponsor of Subcommittee Chairman Bentz's CRA to 
return to a reasonable critical habitat definition, and it is 
why I offer my CRA today--and with my colleague, Senator 
Markwayne Mullin--to undo the uplisting of the northern long-
eared bat.
    [Slide.]
    Mr. Stauber. As you can see behind me, the bat's range is 
massive, covering most of the lower 48 United States.
    The northern long-eared bat is afflicted with white-nose 
syndrome, a disease that has nothing to do whatsoever with 
human involvement. But instead of finding a solution, the Fish 
and Wildlife Service just catered to their anti-development 
groups who are just seeking to stop projects, and uplisted this 
bat. And ironically, as we will see today in testimony, that 
uplisting of the bat will actually limit projects that actually 
benefit their habitat, and uplisting the bat will also stop 
projects that Democrats claim that they want.
    So, let's take a second and consider the following.
    Are there transmission projects proposed on the map behind 
me? The answer is yes.
    Are there solar and wind projects proposed on the map 
behind me? The answer is yes.
    Are there battery metal manufacturing plants proposed on 
the map behind me? The answer is yes.
    So, let alone wildfire mitigation, road building, mining, 
agriculture, and much more.
    With that, Mr. Chair, I look forward to hearing from our 
witnesses today and advancing H.J. Resolution 49 through 
regular order in our House Republican Majority.
    And I yield back.

    Mr. Bentz. I thank you both for testifying. I will now 
introduce our second panel.
    Mr. Steven Guertin, Deputy Director for Policy at the U.S. 
Fish and Wildlife Service; Mr. Rick Horton, the Executive Vice 
President of Minnesota Forest Industries; Mr. Fred Flippence, 
Board President of the Oregon Electric Co-op Association; Mr. 
Robert L. Fischman, Professor of Law at Indiana University 
Maurer School of Law; and Mr. Don Hineman, former President of 
the Kansas Livestock Association.
    Let me remind the witnesses that under Committee Rules they 
must limit their oral statements to 5 minutes, but their entire 
statement will appear in the hearing record.
    To begin your testimony, please press the ``on'' button on 
the microphone.
    We use timing lights. When you begin the light will turn 
green. At the end of 5 minutes, the light will turn red, and I 
will ask you to please complete your statement.
    I will also allow all witnesses to testify before Member 
questioning.
    I now recognize Mr. Guertin for 5 minutes.
    Mr. Guertin.

STATEMENT OF STEPHEN GUERTIN, DEPUTY DIRECTOR FOR POLICY, U.S. 
           FISH AND WILDLIFE SERVICE, WASHINGTON, DC

    Mr. Guertin. Good morning, Chairman Bentz, Ranking Member 
Huffman, and members of the Subcommittee. I am Steve Guertin, 
Deputy Director for the U.S. Fish and Wildlife Service.
    Thank you for the opportunity to testify today on three 
bills related to the Endangered Species Act. And due to 
unforeseen and unavoidable circumstances, I am replacing Gary 
Frazer as the Service's witness.
    This year marks the 50th anniversary of the Endangered 
Species Act. The purposes and goals of this foundational 
conservation law are more relevant than ever. Congress' passage 
of the ESA 50 years ago was forward-looking and provided 
critical tools to address the environmental challenges we face 
today.
    The planet is in the midst of an extinction crisis. In 
addition to the impacts of human activities on a growing number 
of species, this crisis is accelerated by the effects of 
climate change and invasive species, which are making 
historical habitats for many plants and animals unsuitable for 
their continued survival.
    The ESA helps protect some of the most iconic species on 
the planet, as well as many lesser-known species, including 
those discussed in legislation today, such as the northern 
long-eared bat and the lesser prairie chicken.
    Bats are critical to healthy functioning natural 
ecosystems, and contribute at least $3 billion annually to the 
U.S. agricultural economy through pest control and pollination. 
The primary threat to the northern long-eared bat is a disease 
known as white-nose syndrome, which has now spread over nearly 
80 percent of the entire range, and is expected to affect 100 
percent of the range by the end of the decade. We have seen 
estimated declines of 97 to 100 percent in affected long-eared 
bat populations.
    The lesser prairie chicken is emblematic of the grasslands 
of the southern Great Plains. Lesser prairie chicken 
populations have declined drastically due to habitat loss and 
fragmentation. It is estimated the lesser prairie chicken 
habitat has diminished across its historical range by 83 to 90 
percent. The decline of this and other grassland birds is an 
alarming indicator of the immediate and substantial threats to 
this important grassland ecosystem.
    Another important aspect of the ESA is identifying the 
critical habitats essential for the recovery of endangered 
species. This is particularly important as habitat loss or 
degradation is a key threat to many species that face 
extinction. A critical habitat designation describes specific 
areas that are essential to the conservation of that species. 
We have a statutory responsibility to follow the science and to 
conserve imperiled species and the ecosystems upon which they 
depend.
    It is in this light that the Department opposes the three 
ESA bills before us today.
    H.J. Resolution 49 states that Congress disapproves the 
Service's final rule declassifying the northern long-eared bat, 
and that the rule shall have no force or effect. In November 
2022, the Service published this final rule to reclassify the 
northern long-eared bat from threatened to endangered under the 
Endangered Species Act.
    We carefully followed the science. The northern long-eared 
bat clearly meets the definition of an endangered species, and 
its designation as endangered is a sign that we must work even 
more urgently to prevent it from going extinct.
    H.J. Resolution 29 states that Congress disapproves the 
Service's final rule listing the lesser prairie chicken, and 
that the rule shall have no force or effect. In November 2022, 
the Service also published its final rule listing two distinct 
population segments, or DPSs, of the lesser prairie chicken 
under the ESA. The final rule listed the southern DPS as 
endangered and the northern DPS as threatened.
    We fulfilled our statutory responsibilities to use the best 
available and commercial data in making determinations 
regarding the lesser prairie chicken. They have declined 
drastically as compared to historical estimates due to habitat 
loss and fragmentation, and clearly warrant protection under 
the ESA.
    H.J. Res. 46 states that Congress disapproves the 2022 rule 
rescinding a prior 2020 rule that defined the term ``habitat'' 
for the purpose of critical habitat designation, and that the 
2022 rule shall have no force or effect. The Service and the 
National Marine Fisheries Service jointly promulgated that 
rule.
    The Service's June 22 final rule rescinding the 2020 
definition concluded that codifying a single determination and 
definition in regulation could impede the Service's ability to 
fulfill our obligations to designate critical habitat based on 
the best scientific data available.
    Further, we stated that it was more appropriate, more 
consistent with the purposes of the Act, and more transparent 
to the public to determine what areas qualify as habitat for a 
given species on a case-by-case basis, using the best available 
scientific data available for the particular species.
    We believe that the science-based rulemaking processes 
prescribed by the ESA and the Administrative Procedures Act, 
including public participation, are the most responsible 
methods for determining which species warrant protection.
    I appreciate the opportunity to appear before the 
Subcommittee, and we look forward to discussing these bills and 
the Service's views. Thank you, Mr. Chairman.

    [The prepared statement of the U.S. Fish and Wildlife 
Service follows:]
 Prepared Statement of Gary Frazer, Assistant Director for Ecological 
   Services, U.S. Fish and Wildlife Service, U.S. Department of the 
                                Interior
            on H.J. Res. 29, H.J. Res. 46, and H.J. Res. 49

Introduction
    Good morning, Subcommittee Chairman Bentz, Ranking Member Huffman, 
and Members of the Subcommittee. I am Gary Frazer, Assistant Director 
for Ecological Services for the U.S. Fish and Wildlife Service 
(Service) within the Department of the Interior (Department). I 
appreciate the opportunity to testify before you today on three bills 
related to the Endangered Species Act (ESA).
    For more than 150 years, the Service has collaborated with partners 
across the country and around the world to conserve, protect, and 
enhance fish, wildlife, plants, and their habitats. To fulfill our 
mission of conserving our Nation's natural resources, the Service 
implements a variety of environmental laws enacted by the Congress, 
including the ESA. The ESA, a foundational conservation law that plays 
an integral role in preventing the extinction of imperiled species, 
promoting recovery of wildlife, and conserving their habitats, turns 50 
years old this year.
    The purposes and goals of the ESA are more relevant than ever. 
Congress' passage of the ESA 50 years ago was forward looking and 
provided critical tools to address the environmental challenges we face 
today. The planet is in the midst of an extinction crisis driven by 
human activities on the planet. As the human population has expanded, 
the extinction crisis has also grown. The crisis is accelerated by 
climate change and invasive species, which are making many areas of 
historical habitat for plants and animals unsuitable for their 
continued survival. Scientists estimate that as many as 1 million 
species are in danger of extinction, many within decades.\1\ Recovering 
species and preventing their extinction will require innovative, 
proactive, science-based policies and conservation actions that address 
the growing impacts from habitat loss, climate change, and invasive 
species before it is too late. The ESA is a critical tool in helping to 
conserve species before declines become irreversible.
---------------------------------------------------------------------------
    \1\ IPBES (2019): Summary for policymakers of the global assessment 
report on biodiversity and ecosystem services of the Intergovernmental 
Science-Policy Platform on Biodiversity and Ecosystem Services. S. 
Diaz, J. Settele, E. S. Brondizio, et al. (eds.). IPBES secretariat, 
Bonn, Germany. 56 pages. https://doi.org/10.5281/zenodo.3553579
---------------------------------------------------------------------------
    The ESA helps protect some of the least known and some of the most 
iconic species in our Nation, including those discussed in legislation 
today, the northern long-eared bat and the lesser prairie-chicken. Bats 
are critical to healthy, functioning natural ecosystems and contribute 
at least $3 billion annually to the U.S. agriculture economy through 
pest control and pollination. The northern long-eared bat, formerly one 
of the most commonly encountered bats during surveys in the eastern 
U.S., is found in 37 states in the eastern and north central United 
States, the District of Columbia, and all Canadian provinces from the 
Atlantic Coast west to the southern Northwest Territories and eastern 
British Columbia. These bats mostly spend the winter hibernating in 
caves and abandoned mines. During summer, northern long-eared bats 
roost alone or in small colonies underneath bark or in cavities or 
crevices of both live and dead trees. They emerge at dusk to fly 
primarily through the understory of forested areas, feeding on insects. 
White-nose syndrome, the disease driving their decline, is caused by 
the growth of a fungus that sometimes looks like white fuzz on bats' 
muzzles and wings. The fungus thrives in cold, dark, damp places and 
infects bats during hibernation. White-nose syndrome, which has been 
confirmed in 38 states and eight Canadian provinces, is decimating 
cave-dwelling bat species like the northern long-eared bat.
    The lesser prairie-chicken is emblematic of the grasslands of the 
southern Great Plains, a treasured and storied American landscape of 
great importance to the people who call the area home. It is also home 
to hundreds of other wildlife species such as scaled quail, pronghorn 
and mule deer that share the lesser prairie-chicken's habitat. Once 
numbering in the hundreds of thousands (some have estimated historical 
abundances to be in the millions) across nearly one hundred million 
acres, lesser prairie-chicken populations have declined drastically as 
compared to historical estimates due to habitat loss and fragmentation. 
It has been estimated that lesser prairie-chicken habitat has 
diminished across its historical range by between 83 to 90 percent. The 
prairie-chicken's decline, and the decline of many other species of 
grassland birds, serves as a wake-up call for all who value these lands 
and wish to see them conserved for future generations.
    Another important aspect of the ESA is identifying the critical 
habitats essential for the recovery of imperiled species. This is 
particularly important as habitat loss or degradation is a key threat 
for many species that face extinction. A critical habitat designation 
describes those specific areas that are essential to the conservation 
of the species and that may need special management or protection. 
Critical habitat designations affect only Federal agency actions or 
federally funded or permitted activities. Critical habitat designations 
do not affect activities by private landowners if there is no Federal 
``nexus''--that is, no Federal funding or authorization. It is the 
responsibility of Federal agencies to ensure that actions funded, 
permitted, or conducted by them do not destroy or adversely modify 
designated critical habitats.
    We appreciate the Subcommittee's interest in the ESA and in the 
Service's work to implement the law. We offer the following comments on 
the three ESA-related bills under consideration today and look forward 
to discussing our views with the Subcommittee.
H.J. Res. 49, Providing for congressional disapproval under chapter 8 
        of title 5, United States Code, of the rule submitted by the 
        United States Fish and Wildlife Service relating to 
        ``Endangered and Threatened Wildlife and Plants Endangered 
        Species Status for Northern Long-Eared Bat''

    H.J. Res. 49 states that Congress disapproves the rule submitted by 
the Service on ``Endangered and Threatened Wildlife and Plants 
Endangered Species Status for Northern Long-Eared Bat'' and that the 
rule shall have no force or effect.
    The Service listed the northern long-eared bat as a threatened 
species in 2015, and a 4(d) rule was finalized in 2016. In 2021, 
following litigation against the Service, the Service was ordered to 
reconsider the previous listing decision. On November 30, 2022, after 
updating the species status assessment and completing the rulemaking 
process under the Administrative Procedure Act (APA), the Service 
published in the Federal Register the final rule to reclassify the 
northern long-eared bat from threatened to endangered under the ESA.
    The Service completed an extensive review of changes in the bat's 
status and threats since the 2015 rule, and found that white-nose 
syndrome--the overwhelming threat to the species--now affects nearly 
all of the bat's populations. White-nose syndrome has spread across 
approximately 79% of the species' entire range and is expected to 
affect 100% of the species' range by the end of the decade. Data 
indicate white-nose syndrome has caused estimated declines of 97 to 
100% in affected northern long-eared bat populations. Given the 
increasing threat of this disease, the bat now meets the definition of 
an endangered species, i.e., in danger of extinction throughout all or 
a significant portion of its range.
    The Service has a strong foundation in place for working with 
stakeholders to conserve listed bats while allowing economic activities 
to continue to occur in compliance with the ESA. Since the species was 
listed as threatened in 2015, the Service has approved more than 22 
habitat conservation plans (HCPs) that allow wind energy and forestry 
projects to proceed after minimizing and mitigating their impacts to 
northern long-eared bats. Many of the protective actions we have taken 
since the species was listed as threatened will continue to be relevant 
to the conservation of the species now, and more attention and focus 
will be directed to combatting white-nose syndrome, managing the risk 
to surviving populations, and assisting landowners and developers in 
establishing ESA compliance.
    After careful consideration, the Service published a notice in the 
Federal Register delaying the effective date of the final rule from 
January 30, 2023, to March 31, 2023. This delay enabled the Service to 
refine interim guidance and tools to help stakeholders transition to 
the reclassification from threatened to endangered. On March 6, 2023, 
the Service made these materials available on our website, which 
include an interim Section 7 framework, a determination key, interim 
guidance for wind energy operations, and interim guidance for forest 
habitat modification. Projects subject to section 7 consultation under 
the ESA can be screened through the determination key, and formal 
consultation, if necessary, can begin through the Interim Consultation 
Framework. The interim wind guidance, interim forest habitat 
modification guidance, and interim Section 7 framework will be in place 
until April 1, 2024. The Service expects to work on final tools and 
guidance over the next year.
    Simultaneously, the Service leads the collaborative response to 
white-nose syndrome in the United States, coordinating with over 150 
partnering agencies, organizations, and institutions to implement the 
national response plan. Also, the Service continues to support research 
through annual grant programs and to develop management strategies to 
reduce impacts to bats from the disease. The Service has awarded more 
than $46 million to states, tribes, federal agencies, research 
institutions, and nongovernmental organizations collaborating to 
advance our knowledge and tools available to help fight the disease. 
Through these efforts, promising treatments have emerged aimed at 
slowing disease spread and improving survival of bats.
    The Administration opposes H.J. Res. 49. The Service has carefully 
followed the science, the ESA process, and the Administrative Procedure 
Act (APA). The northern long-eared bat clearly meets the definition of 
an endangered species, and its designation as endangered is an alarm 
that we all need to work to prevent it from going extinct. We believe 
that the administrative rulemaking process, including public 
participation, prescribed by statute and informed by the best 
scientific and commercial data available, is the best and most 
responsible method for determining species that warrant protection 
under the ESA. This legislation would circumvent that long-standing 
statutory process.
H.J. Res. 29, Providing for congressional disapproval under chapter 8 
        of title 5, United States Code, of the rule submitted by the 
        United States Fish and Wildlife Service relating to 
        ``Endangered and Threatened Wildlife and Plants; Lesser 
        Prairie-Chicken; Threatened Status With Section 4(d) Rule for 
        the Northern Distinct Population Segment and Endangered Status 
        for the Southern Distinct Population Segment''

    H.J. Res. 29 states that Congress disapproves the rule submitted by 
the Service relating to ``Endangered and Threatened Wildlife and 
Plants; Lesser Prairie-Chicken; Threatened Status With Section 4(d) 
Rule for the Northern Distinct Population Segment and Endangered Status 
for the Southern Distinct Population Segment'' and that the rule shall 
have no force or effect.
    The lesser prairie-chicken became a candidate for listing under the 
ESA in 1998 and was listed as a threatened species in 2014. The listing 
was vacated in 2015 following a lawsuit. In September 2016, the Service 
received a new petition to list the lesser prairie-chicken as 
endangered, and in November 2016, made a 90-day petition finding that 
the petition provided substantial information that the petitioned 
action may be warranted.
    On November 25, 2022, the Service published a final rule listing 
two Distinct Population Segments (DPSs) of the lesser prairie-chicken 
under the ESA. The final rule listed the Southern DPS of the lesser 
prairie-chicken as endangered and the Northern DPS as threatened. This 
decision was made after reviewing the best available scientific and 
commercial information regarding past, present, and future threats, 
ongoing conservation efforts, and more than 30,000 public comments 
received during the public comment period and two virtual public 
hearings.
    The Southern DPS of the lesser prairie-chicken is continuing to 
experience ongoing habitat loss and fragmentation, and additional 
threats from influence of extreme weather events, particularly 
droughts. The Southern DPS currently has low resiliency, redundancy, 
and representation and is particularly vulnerable to severe droughts 
due to its location in the drier and hotter southwestern portion of the 
range. Because the Southern DPS is currently at risk of extinction, we 
listed it as endangered.
    For the Northern DPS, habitat degradation, loss, and fragmentation 
are the primary threat to the lesser prairie-chicken. While overall 
resiliency in this DPS has been reduced as compared to historical 
conditions, the Northern DPS has enough redundancy and resiliency to 
not be currently in danger of extinction. However, based upon our 
projections of additional habitat loss and fragmentation in the future, 
the species is likely to become endangered in the foreseeable future 
and thus meets the definition of a threatened species.
    As part of the final listing determination, the Service also 
announced a rule for the management of the Northern DPS under Section 
4(d) of the ESA. The 4(d) rule is designed to conserve the species 
while allowing greater flexibility for landowners and land managers. 
The 4(d) rule for the Northern DPS provides that farmers can continue 
their routine agriculture activities on existing cultivated lands. In 
addition, it recognizes the importance of proper grazing management and 
allows impacts to the species for those producers who are following a 
prescribed grazing plan developed by a qualified party approved by the 
Service. Lastly, the 4(d) rule provides an exception for prescribed 
fire for the purposes of grassland management. For the oil and gas 
industry, most of the range is covered by both the approved Oil and Gas 
Habitat Conservation Plan and the Western Association of Fish and 
Wildlife Agencies' Candidate Conservation Agreement with Assurances. 
This means companies have more than one option for receiving 
streamlined ESA compliance if they need it.
    The states, the Service, and other partners have been working to 
conserve lesser prairie-chicken for over 20 years and have developed 
conservation tools and plans, including Candidate Conservation 
Agreements with Assurances (CCAA) and Habitat Conservation Plans (HCP), 
which provide streamlined ESA compliance options for all sectors. We 
will continue to work collaboratively with all our partners to conserve 
the lesser prairie-chicken.
    After careful consideration, the Service published a notice in the 
Federal Register delaying the effective listing date by 60 days, from 
January 24, 2023, to March 27, 2023. This extension allowed more time 
for interested parties to enroll in Service-approved conservation 
plans, such as CCAAs and HCPs. This delay also allowed additional time 
for the Service to work with partners and stakeholders on 
implementation of the grazing provision of the 4(d) rule for the 
Northern DPS and provide interested parties guidance on how to evaluate 
the need to participate and understand their options for doing so. 
During this time, the Service and the Natural Resources Conservation 
Service (NRCS) continued to work together to ensure that grazing plans 
written by NRCS within the range of the lesser prairie-chicken are 
sufficient to establish compliance under the ESA. The Service continues 
to work with stakeholders and partners to identify and approve parties 
for developing grazing plans under the 4(d) grazing provision for the 
Northern DPS.
    The Administration opposes H.J. Res.29. The Service has fulfilled 
our statutory responsibilities to use the best available scientific and 
commercial data in making determinations regarding the lesser prairie-
chicken. This legislation would essentially side-step the rulemaking 
process under the ESA. We believe that the administrative process 
prescribed by the ESA and the APA, including public participation, is 
the best path for determining species that warrant protection under the 
ESA.
H.J. Res. 46, Providing for congressional disapproval under chapter 8 
        of title 5, United States Code, of the rule submitted by the 
        National Marine Fisheries Service relating to ``Endangered and 
        Threatened Wildlife and Plants; Regulations for Listing 
        Endangered and Threatened Species and Designating Critical 
        Habitat''

    H.J. Res. 46 states that Congress disapproves the rule submitted by 
the National Marine Fisheries Service (NMFS) relating to ``Endangered 
and Threatened Wildlife and Plants; Regulations for Listing Endangered 
and Threatened Species and Designating Critical Habitat'' and the rule 
shall have no force or effect. While the Service is aware that the 
legislation refers to NMFS, the Service jointly promulgated this rule 
with NMFS.
    On January 20, 2021, the President issued Executive Order 13990, 
which, in section 2, required all executive departments and agencies to 
review Federal regulations and actions taken between January 20, 2017, 
and January 20, 2021. In support of E.O. 13990, a ``Fact Sheet'' was 
issued that set forth a non-exhaustive list of specific agency actions 
that agencies are required to review to determine consistency with the 
policy considerations articulated in section 1 of the E.O. Among the 
agency actions listed on the Fact Sheet was the Service's and NMFS' 
December 16, 2020, final rule promulgating a regulatory definition for 
the term ``habitat'' under the ESA. Following the Service's and NMFS' 
review of this rule, we determined it was unclear and confusing and 
inconsistent with the conservation purposes of the ESA, and we 
subsequently published a proposed rule to rescind it. The Service and 
NMFS solicited public comments on the proposed rule and extended the 
deadline for submission of public comments.
    The Service's and NMFS' June 24, 2022, final rule rescinding the 
2020 rule concluded that codifying a single definition in regulation 
could impede the agencies' ability to fulfill their obligations to 
designate critical habitat based on the best scientific data available. 
Further, we stated that it is more appropriate, more consistent with 
the purposes of the ESA, and more transparent to the public to 
determine what areas qualify as habitat for a given species on a case-
by-case basis using the best scientific data available for the 
particular species.
    The Administration opposes H.J. Res. 46. The Service and NMFS 
followed the law in promulgating this rule rescinding the 2020 habitat 
rule. We believe that the administrative process prescribed by the ESA 
and the APA, including public participation, is the best path for 
revising our implementing regulations under the ESA.
Conclusion

    Although we oppose the three bills being considered today, we 
appreciate the Subcommittee's interest in the ESA and in the Service's 
work to implement this critical conservation law.
    Both northern long-eared bats and lesser prairie-chicken are in 
serious trouble and at risk of extinction, either now or in the 
foreseeable future. Designations of critical habitat play an important 
role in the conservation and recovery of many imperiled species. We are 
committed to following the administrative processes laid out under the 
ESA and the APA. The protections of the ESA are critical for the future 
of these species and the ecosystems upon which they depend.
    We look forward to continued communication with the Subcommittee 
regarding the recovery process and status for northern long-eared bats 
and lesser prairie-chickens, designation of critical habitat, and all 
aspects of the Service's work.

                                 ______
                                 

    Mr. Bentz. Thank you.
    I now recognize Congressman Stauber to introduce our next 
witness, Mr. Rick Horton.
    Mr. Stauber. Thank you, Mr. Chair. Today, I am proud to 
welcome my good friend from Grand Rapids, Minnesota, Mr. Rick 
Horton.
    Mr. Horton is the Executive Vice President of Minnesota 
Forest Industries, which represents the milling portion of the 
wood products sector. However, Mr. Horton is also a Wildlife 
Society certified wildlife biologist with more than three 
decades of experience.
    So, when discussing the impact of wildlife and the 
Endangered Species Act on the lives of Minnesotans and the many 
Americans that live in the northern long-eared bat's range, I 
knew exactly who to call. His professional and academic 
credentials in this space are unmatched and represents the best 
of what we have to offer in northern Minnesota.
    But Mr. Horton is also a sportsman and a proud northern 
Minnesotan who lives, works, and plays in northern Minnesota. 
His expertise and understanding lend to being the ideal witness 
for our discussion today.
    With that, I look forward to his testimony and I yield 
back, Mr. Chair.
    Mr. Bentz. Thank you. I now recognize Mr. Horton for 5 
minutes.

 STATEMENT OF RICK HORTON, EXECUTIVE VICE PRESIDENT, MINNESOTA 
           FOREST INDUSTRIES, GRAND RAPIDS, MINNESOTA

    Mr. Horton. Subcommittee Chair Bentz and Ranking Member 
Huffman, members of the Committee, thank you for having me 
today.
    As Mr. Stauber put it, I am just very pleased to be here 
today and represent the people of northern Minnesota. I am the 
Executive Vice President of Minnesota Forest Industries. I am 
also a member of the Federal Forest Resources Coalition's 
Policy Committee.
    As you have heard, white-nose syndrome has been decimating 
cave-roosting bat populations across the United States since it 
was found in New York in 2006. It is caused by an invasive old-
world fungus that came over on, I guess, on people's clothing 
when they were cave exploring. It does force the bats to awaken 
from hibernation, burn up fat reserves, and eventually die from 
starvation and dehydration. And there is no known cure for it.
    The long-eared bat is found in 37 states and all southern 
Canadian provinces. It was listed as threatened in 2015, and 
last month uplisted to endangered status.
    As Mr. Guertin said, the Service fully recognizes that 
white-nose syndrome is the primary factor influencing this 
situation. It alone has caused population declines of 97 to 100 
percent across 79 percent of the species' range. Yet, since 
listing the species, the focus of the Service continues to be 
prevention of incidental take through habitat protection. You 
can hear the quotes: ``protection.''
    Northern long-eared bats occupy forested habitats during 
the growing season, using older trees with cavities, cracks, 
and loose bark for day roosting, socializing, protection from 
predators, and for raising their young. They emerge at night to 
feed on insects in forest openings and corridors, and those 
openings and corridors are often provided through logging 
activity. And they aren't selective in their tree use. They are 
very fluid in tree use. They use whatever species are most 
available on the landscape.
    When it was threatened, the 4(d) rule was in place that 
restricted timber harvest near hibernating areas and protected 
known and occupied maternal roost trees during the summer. And 
while it focused on habitat protection, it was flexible enough 
that it didn't impose unnecessary constraints upon the forest 
products industry. But uplisting invalidated the 4(d) rule and 
further cemented the false notion that habitat preservation is 
essential for northern long-eared bat conservation, when, in 
fact, the availability of forest habitat is not a contributing 
factor in their decline for the following reasons:
    (1) Forest habitat across the range of the bat is 
increasing. It has increased a total of 6.5 percent since 1953.
    (2) Maternal roost tree habitat is increasing. The bats 
will use any size tree, but they prefer them to be over 9 
inches, and the median size about 15 inches in diameter. 
Analysis of inventory data found that the number of standing 
dead hardwood and softwood trees of that size increased by 30 
percent and 15 percent, respectively. In addition, the number 
of live trees of that size increased by 3 percent.
    (3) Roosting habitat is already retained during harvest. 
Ninety-five million acres of forest land in America are 
certified to the SFI Forest Management Standard, which requires 
enrollees to retain snags, den trees, and nest trees during 
timber harvest. Additionally, many states have forest best 
management practices that also dictate retention of these 
features.
    (4) Bats are adapted to roost tree loss. While bats 
sometimes return to previously-used trees, they are flexible in 
their roost tree selection. Unfortunately, many 
conservationists view roosts and roost areas as fixed landscape 
elements that must be saved.
    And lastly, (5) Bats with young are mobile. The young cling 
to the mother, and she can fly from tree to tree, and often 
does on a daily basis. So, the loss of an individual roost tree 
is not a limiting factor.
    So, more bureaucratic red tape and restricting forest 
management in the bats range will not contribute to its 
recovery. And while habitat conservation plans are being 
developed, there are a number of concerns about how these will 
be implemented when final guidelines are issued. They are not 
out yet.
    In conclusion, habitat is not the cause of the decline, but 
it will restrict timber harvesting. Our industry is a tool to 
accomplish many forest management goals. Through sustainable 
and responsible timber harvesting, we increase biodiversity, 
create wildlife habitat, stop the spread of forest insects and 
disease, increase recreational opportunities, and prevent 
wildfire.
    Increasingly, we look at our forests to address climate 
change, due to their ability to absorb atmospheric carbon and 
store it in the woods as well as forest products. But 
continuing to impose over-reaching and ineffective restrictions 
on the U.S. forest products industry will result in more 
shuttered mills across the United States and those products 
being sourced from parts of the world with few environmental 
protections.
    Thank you for the opportunity to comment.

    [The prepared statement of Mr. Horton follows:]
Prepared Statement of Rick Horton, Executive Vice President, Minnesota 
                           Forest Industries
                            on H.J. Res. 49

    Thank you for the opportunity to testify on the Congressional 
Review Act (CRA) resolution H.J. Res. 49 disapproving of the northern 
long-eared bat's endangered listing under the Endangered Species Act 
(ESA).
    My name is Rick Horton. I am the Executive Vice President of 
Minnesota Forest Industries, which represents primary wood-consuming 
mills. The industry provides employment for 69,000 hard-working 
Minnesotans and is the 5th largest industry in the state. I also am a 
member of the Federal Forest Resources Coalition's Policy Committee. 
Lastly, I am a Wildlife Society Certified Wildlife Biologist, with 30 
years of experience managing and advocating for forest wildlife habitat 
management.

    Background: In 2006 cave explorers near Albany, New York took 
photographs of bats with a white powdery substance on their noses. In 
2007 biologists found dead and dying bats in the same caves and dubbed 
the disease ``white-nose syndrome'' or WNS. Researchers identified a 
previously unknown fungus named Pseudogymnoascus destructans (Pd) that 
was the root cause of WNS. It was traced back to Europe and Asia and 
was likely introduced to America on boots and clothing.
    WNS causes bats to awaken from hibernation and fly about, burning 
up fat reserves and eventually dying from starvation and dehydration. 
There is no known treatment for it, and it is decimating populations of 
cave-roosting bats.
    WNS marched quickly across the US, spread by bat-to-bat contact and 
by humans visiting caves. It reached Minnesota in 2016, and by 2020 
populations of cave-roosting bats had crashed by over 92% in the two 
primary hibernating areas (Minnesota Department of Natural Resources).

    NLEB Habitat: Forest cave-dwelling bats hibernate in caves during 
the winter and occupy forested habitats in the growing season. They 
typically use older trees with cavities, cracks or loose bark for day 
roosting, socializing, protection from predators, and birthing. They 
emerge at night to feed on insects in forest openings and corridors. 
Notably females rear their single pups on or in ``maternal roost 
trees'' with similar characteristics. Research shows that northern 
long-eared bats (NLEB) do not have any affiliation to specific types of 
deciduous trees, rather using whatever trees are most common in the 
landscape.

    Federal Regulations: The northern long-eared bat (Myotis 
septentrionalis) is found in 37 states in the eastern and north-central 
United States, the District of Columbia, and all southern Canadian 
provinces. Range-wide NLEB populations have decreased by over 90% 
(Cheng et al., 2021).

    The USFWS listed the NLEB as threatened under the Endangered 
Species Act in 2015. At that time a 4(d) Rule was adopted that 
restricted timber harvest near hibernacula and protected known and 
occupied maternal roost trees from June 1-July 31 [Fed. Reg. 81 FR 
1900, February 16, 2016. Docket No. FWS-R5-ES-2011-0024]. The 4(d) Rule 
focused on habitat protection but was flexible enough that it didn't 
impose unnecessary constraints upon the forest products industry.

    On November 30, 2022, the USFWS published a final rule uplisting 
the northern long-eared bat from ``threatened'' to ``endangered'' 
status under the ESA [Fed. Reg. 16442, March 23, 2022. Docket No. FWS-
R3-ES-2021-0140]. Though initially set to become effective on January 
30, 2023, USFWS delayed the effective date of the uplisting until March 
31, 2023.

    At Issue: The availability of forest habitat for NLEB is not a 
contributing factor in their decline for the following reasons:

     Forest habitat in general is increasing. The area of 
            forestland within their combined 37-state range in the US 
            has increased 6.5 percent since 1953 (USDA 2020).

     Maternal roost tree habitat is increasing. NLEBs use any-
            sized tree, but prefer larger diameter trees for maternal 
            roosts, with a mean of 15 inches in diameter (Moen 2018). 
            Comparison of the earliest and the most recently available 
            statewide forest inventory data collected by the USDA 
            Forest Service Forest Inventory and Assessment (FIA) found 
            that the number of standing dead hardwood and softwood 
            trees 15 inches or greater in diameter increased by 29.4 
            percent and 14.9 percent, respectively within the 37-state 
            range of the NLEB. Further, the number of live trees with a 
            diameter of 15 inches or greater increased by 3.1 percent.

     Roosting habitat is retained during harvest. 375 million 
            acres of forestland in North America are certified to the 
            2022 Sustainable Forestry Initiative Forest Management 
            Standard. Objective 4, Performance Measure 4.1, Indicator 2 
            requires, ``Development of criteria and implementation of 
            practices, as guided by regionally based best scientific 
            information, to retain stand-level wildlife habitat 
            elements such as snags, stumps, mast trees, down woody 
            debris, den trees and nest trees''. Additionally, many 
            states have voluntary or mandatory forest Best Management 
            Practices (BMPs) that dictate retention of snags, den trees 
            and cavity trees during timber harvest.

     Bats are adapted to roost tree loss. While bats sometimes 
            return to previously used roost trees, they are adapted to 
            roost tree loss because their preferred trees are highly 
            susceptible to mortality. They are therefore flexible in 
            their roost tree selection. Unfortunately, many bat 
            conservationists view roosts and roosting areas as fixed 
            landscape elements (Silvis, et al., 2015).

     Bats with young are mobile. NLEBs frequently move their 
            young from tree to tree before they are able to fly on 
            their own. The pups cling to the mother and she flies to 
            other roost trees (Whittle 2022). Therefore, loss of an 
            individual roost tree may not negatively impact the bat.

    Management Implications. When the USFWS lists a species, it strives 
to conserve its habitat, apparently without considering whether habitat 
is limiting the viability of the species. The USFWS fully recognizes 
the role WNS has played in decimating NLEB populations, noting that 
``the primary factor influencing its viability is white-nose syndrome 
(WNS), a disease of bats caused by a fungal pathogen.'' They also 
state, ``WNS has caused estimated northern long-eared bat population 
declines of 97-100 percent across 79 percent of the species' range.'' 
[Fed. Reg. page 16446, March 23, 2022].
    And yet, with the ``uplisting'' to Endangered, the near complete 
focus of the USFWS seems to be preventing incidental take through 
habitat ``protection.'' When NLEB was listed as Threatened in 2015, 
USFWS defined ``take'' to include disturbance of forest habitat around 
hibernating areas and known occupied maternity roost trees in the 
growing season. The 4(d) Rule was developed to protect these elements, 
but it did so in a way that minimized impacts upon forest planning and 
timber harvesting.
    Uplisting the NLEB to Endangered status would invalidate the 4(d) 
rule, and further cement habitat ``preservation'' as essential for bat 
conservation. Habitat ``preservation'' is very unlikely to lead to a 
reversal in the declines experienced by cave dwelling bats, as the 
uncurable white-nose syndrome will still cause significant mortality in 
winter hibernation areas. Moreover, any forest management professional 
knows that ``preserving'' individual trees is not a viable approach 
over the long term. It will simply leave forests in an unmanaged 
condition, where they can be wiped out by random events like wind, ice, 
or fire.
    More bureaucratic red tape and restricting forest management in the 
NLEB range will not contribute to its recovery. While Habitat 
Conservation Plans and Guidance Documents are being developed to 
clarify what timber management practices are allowed on public lands, 
there are concerns about how these will be implemented. Final guidance 
documents have not been released and we are very concerned what 
additional habitat-related restrictions they may contain. It is unclear 
how large private forest landowners will be impacted. Additionally, 
only 6 of 37 states within the range of the NLEB have Habitat 
Conservation Plans in process.

    Conclusion: White-nose syndrome has decimated forest cave-dwelling 
bat populations. Habitat for the species is not lacking at the 
landscape scale, and the species is adapted to the ephemeral nature of 
old, hollowed out trees. Therefore, static protection of known maternal 
roost trees will not slow or reverse their decline. But it will 
restrict timber harvesting, contributing to the decline in global 
competitiveness of the US forest products industry.
    Papermills, sawmills and engineered wood product manufacturers are 
the economic base of many forested rural communities across the nation. 
Nearly 75 percent of the US forest products industry's employment and 
economic output are within the 37-state range of the NLEB. 
Unnecessarily constraining wood supply threatens the continued 
viability of rural forest-based communities that are reliant on a 
predictable and sustainable supply of wood resources to make products 
used every day by Americans.
    Our industry is the tool to accomplish most forest management 
goals. Through sustainable and responsible timber harvesting we 
increase biodiversity, create wildlife habitat, stop the spread of 
forest insects and disease, increase recreational opportunities, and 
prevent wildfire--all while protecting water quality, maintaining soil 
productivity, and preserving and respecting cultural resources. 
Increasingly we are looking to our forests as part of the solution to 
climate change due to their ability to absorb atmospheric carbon and 
store it in the woods as well as in forest products, many of which can 
replace fossil fuel-based products.
    Human demand for forest products is not diminishing. But continuing 
to impose over-reaching and ineffective restrictions on the US forest 
products industry will result in more shuttered mills in the US and 
those products being sourced from parts of the world with few 
environmental protections.
Citations:

Cheng, T.L., J.D. Reichard, J.T.H. Coleman, et al. 2021. The scope and 
severity of white-nose syndrome on hibernating bats in North America. 
Conservation Biology, 35(5)

Moen, R. and M. Swingen. 2018a. Historical northern long-eared bat 
occurrence in Minnesota based on acoustic surveys. NRRI Technical 
Report No. NRRI/TR-2018/40 Release 1.0. University of Minnesota Duluth.

Silvis A, Ford WM, Britzke ER. 2015. Effects of Hierarchical Roost 
Removal on Northern Long-Eared Bat (Myotis septentrionalis) Maternity 
Colonies. PLoS ONE 10(1): e0116356. https://doi.org/10.1371/
journal.pone.0116356

USDA-Forest Service. 2020. Forest Resources of the United States, 2017: 
A Technical Document Supporting the Forest Service 2020 RPA Assessment.

Whittle, Ellen M. 2022. Context-dependent selection and temporal use of 
roost-sites by female northern long-eared bats. M.S. Department of 
Zoology and Physiology.

                                 ______
                                 

    Mr. Bentz. Thank you for being here.
    I recognize myself to introduce our next witness, Mr. Fred 
Flippence.
    Fred Flippence is the General Manager of Harney Electric 
Cooperative, and is the current President of the Oregon Rural 
Electric Cooperative Association. In his capacity as General 
Manager of the Harney Electric Cooperative, he deals with a 
host of ESA-related issues, including the effects of golden 
eagle critical habitat, sage grouse habitat conservation, and 
costs associated with conservation of salmon in the Columbia 
River Basin.
    Mr. Flippence, welcome to the Subcommittee. You are now 
recognized for 5 minutes.

  STATEMENT OF FRED FLIPPENCE, BOARD PRESIDENT, OREGON RURAL 
        ELECTRIC COOPERATIVE ASSOCIATION, HINES, OREGON

    Mr. Flippence. Thank you, Chairman Bentz, Ranking Member 
Huffman, and members of the Subcommittee. My name is Fred 
Flippence, and I am the General Manager of Harney Electric 
Cooperative, which provides electricity to communities in 
Oregon and Nevada. I am here today on behalf of the Oregon and 
Nevada Co-op Statewide Associations, as well as the NRECA in 
support of H.J. Resolution 46.
    I want to thank Chairman Bentz, who is my Congressman, for 
the opportunity to testify.
    I also want to send greetings to one of Oregon's newest 
House Members, Congresswoman Val Hoyle, for her service on this 
important Committee for Oregonians.
    I would like to offer a perspective on how the Endangered 
Species Act, the ESA, and the associated designation of 
critical habitat affects the ability of the electric 
cooperatives to provide affordable, reliable power.
    Harney Electric serves over 20,000 square miles in 
southeast Oregon and rural Nevada, and has very low customer 
density, averaging less than 1 member per 16 square miles. To 
put our territory in context, we serve 1,232 members in an area 
only slightly smaller than the state of West Virginia.
    The Federal Government manages 75 percent of the land mass 
in our territory. The BLM has a large presence in our area, 
along with two national wildlife refuges. Our membership is 
made up of ranching and farming communities. We also have a 
significant Native American population.
    The logging industry used to be the heart and soul of 
Harney County. Our headquarters is across the street from an 
old mill that used to employ most of the people in Harney 
County. However, shifting Federal policies, such as the listing 
of the northern spotted owl, led to the closure of mills across 
our state. In some ways, our community has never recovered, as 
47 percent of the population of Harney County still lives below 
the poverty line.
    Harney Electric is a full requirements customer of the 
Bonneville Power Administration, BPA, which markets wholesale 
electric power from 31 Federal hydroelectric dams in the 
Northwest. BPA funds hundreds of projects each year to benefit 
the ESA-listed species, and to mitigate the impacts of the 
Federal hydropower system on fish and wildlife in the Columbia 
River Basin.
    Decisions to protect the habitat come at a serious cost: 
$0.30 of every dollar of our power bill goes to fish mitigation 
on the Columbia River system. This cost will continue to 
increase. The total annual cost for BPA's fish and wildlife 
program next year is projected to be $852 million. While we 
remain committed to fulfilling our fish and wildlife 
obligations, we will continue to seek proper sharing of these 
costs. We cannot have an open-ended obligation on customers 
that struggle to pay their electricity bills.
    There is also an ongoing campaign to remove the Lower Snake 
River dams, which would not guarantee increased salmon 
survivability, but it would harm our communities, increase 
carbon emissions, and enhance the likelihood of blackouts in 
our region.
    It is an understatement to say that it is a challenge 
running a frontier utility that has multiple species in our 
territory. In 2014, we had to push back on BLM's proposal to 
protect the sage grouse habitat that would have required Harney 
Electric to relocate or underground several hundred miles of 
transmission and distribution line at a cost of $400 million. 
Our greatest concern was the lack of economic analysis. The 
answer to this question was, it would have bankrupted my co-op.
    Even without this draconian level of mitigation to protect 
the sage grouse, it is undeniable that projects are delayed 
because of habitat decisions. For instance, our easement came 
up for renewal on the Malheur Refuge, and it was declined by 
the U.S. Fish and Wildlife Service because they did not want 
power lines on the refuge. I had to explain the electricity 
from these power lines serves their headquarters, their fish 
weirs, and their irrigation on the refuge.
    We have a similar situation where a renewable geothermal 
project is being held up because of an abandoned golden eagle 
nest. We do not believe a golden eagle has been there in 20 
years, but we are required to wait through the golden eagle 
breeding season to see if eagles will reclaim the nest. We hope 
the U.S. Fish and Wildlife Service will deem this nest 
abandoned, and the project can resume.
    I would like to thank you for the opportunity to speak 
today. Thank you.

    [The prepared statement of Mr. Flippence follows:]
Prepared Statement of Fred Flippence, General Manager, Harney Electric 
                              Cooperative
                            on H.J. Res. 46

    Chairman Bentz, Ranking Member Huffman, and members of the 
Subcommittee, my name is Fred Flippence, and I am the General Manager 
of Harney Electric Cooperative (HEC) which provides electricity to 
communities in both Oregon and Nevada. I am also the President of the 
Oregon Rural Electric Cooperative Association (ORECA) and serve on the 
board of directors for the Nevada Rural Electric Association (NREA). I 
want to thank Chairman Bentz, who is my Congressman, for the 
opportunity to testify. I also want to send greetings to one of 
Oregon's newest House Members--Congresswoman Val Hoyle--for serving on 
this important committee for Oregonians.
    I appreciate the opportunity to testify today and offer a 
perspective on how the Endangered Species Act (ESA) and the associated 
designation of critical habitat affects the ability of electric 
cooperatives to provide affordable and reliable power. I am here today 
on behalf of HEC, ORECA, and the National Rural Electric Cooperative 
Association (NRECA).
Harney Electric and the Cooperative Business Model

    The effort to electrify rural America became a national priority 
under President Franklin Delano Roosevelt's New Deal in 1935. At this 
time only one in ten rural homes had electricity, and the federal 
government was looking for a partner to improve the quality of life in 
rural America. Electric co-ops stepped forward and 80 years later rural 
electrification is one of the greatest public-private partnerships this 
country has ever seen. Today, cooperatives like HEC provide electricity 
to 42 million Americans across 48 states.
    HEC, like other electric cooperatives, is a democratic organization 
controlled by the members who actively participate in making decisions 
for the cooperative. The members elect a board of seven directors from 
geographic districts to set policy for the organization. Board members 
are directly accountable to their member constituents by way of the 
democratic election process. In HEC's cooperative governance and 
financial model, the organization's mission and cost management actions 
reflect the values of our membership and community. Furthermore, the 
members are ultimately responsible for the financial obligations and 
ongoing operations of the cooperative. We have no outside shareholders 
to bear risk or absorb costs on behalf of our members. This model helps 
electric cooperatives keep rates affordable--an important consideration 
because co-ops serve 92 percent of the country's persistent poverty 
counties.
    While we are fortunate that electricity is accessible and reliable 
in the United States, that is not the case around the globe. We believe 
it is our obligation to pay forward our expertise in rural 
electrification. Last month, in partnership with NRECA International, 
Oregon's electric cooperatives completed an ambitious project to help 
electrify the small village of Ventura, Guatemala, with the help of 
nine Oregon electric co-op linemen and one engineer. I am pleased that 
one of Harney Electric's linemen was part of a project that will change 
the lives of these villagers, just as electricity changed the landscape 
of rural America.
Profile of Harney Electric Cooperative

    HEC was founded in 1954 to provide power to the rural farmers and 
ranchers in the region. Our cooperative serves over 20,000 square miles 
in southeast Oregon and rural Nevada and has very low customer density, 
averaging less than one member per 16 square miles. To put our sparse 
and remote territory in context, we serve 1,232 members in an area only 
slightly smaller than the state of West Virginia (which has a 
population of nearly 1.8 million.)
    Harney Electric's service area is bigger than nine states and 
serves our members with 400 miles of transmission line and over 2,600 
miles of distribution line. The federal government manages 75% of the 
land mass in our territory. The Bureau of Land Management has a large 
presence in our area, along with two National Wildlife Refuges. Our 
membership is made up of ranching and farming communities, and most of 
their load is for large irrigation pumps for growing alfalfa. We 
currently have no industrial customers, and our largest commercial 
customer is a state funded dormitory high school in Crane, Oregon. We 
also have a significant Native American population. HEC serves the Fort 
McDermitt Indian Reservation representing the Paiute and Shoshone 
Tribes. We also serve a few members of the Burns Paiute tribe and the 
Summit Lake Tribe. A portion of our northern territory and the 
reservation have been identified by the federal government as having a 
high social vulnerability index. In fact, 47% of the population of 
Harney County lives below the poverty line.
Electric Cooperatives and the Endangered Species Act

    Electric co-ops are guided by seven principles, including ``concern 
for community.'' We live in the communities we serve, and we care about 
the environment.
    We support the underlying goals of the ESA; however, we think it is 
important to highlight how even a well-intentioned law can create real 
world challenges and should be improved. We offer the following 
examples to highlight how the ESA and critical habitat can affect 
electric cooperatives like HEC and rural communities.
Endangered Salmon and the Federal Columbia River Power System

    HEC is a full requirements customer of the Bonneville Power 
Administration (BPA), a nonprofit federal power marketing 
administration based in the Pacific Northwest. Although BPA is part of 
the U.S. Department of Energy, it is self-funded and covers its costs 
by selling its products and services. BPA markets wholesale electrical 
power from 31 federal hydroelectric dams in the Northwest, and one 
nonfederal nuclear plant. The dams are operated by the U.S. Army Corps 
of Engineers and the Bureau of Reclamation. The nonfederal nuclear 
plant, Columbia Generating Station, is owned and operated by Energy 
Northwest, a joint operating agency of the state of Washington. BPA 
provides about 28% of the electric power generated in the Northwest, 
and its resources--primarily hydroelectric--make BPA power nearly 
carbon free. It is important to note that at HEC, our power costs are 
approximately 50% of our costs to our members.
    To mitigate the impacts of the federal dams, BPA funds--through its 
customers--one of the most ambitious fish and wildlife programs in the 
world. The BPA Fish and Wildlife Program funds hundreds of projects 
each year to benefit ESA-listed species and to mitigate the impacts of 
the development and operation of the federal hydropower system on fish 
and wildlife in the Columbia River Basin. Examples of these actions 
include habitat measures (e.g., tributary habitat improvements) and 
operational measures at storage and run-of-river projects (e.g., flow 
management and fish passage), among a myriad of other projects.
    These projects, while beneficial, come at a serious cost. Thirty 
cents of every dollar of our power bill goes to fish and wildlife 
mitigation on the Columbia River System. This cost will continue to 
increase. The total annual cost for BPA's Fish and Wildlife action is 
projected to be $852 million in FY 2024-25, which is a significant 
increase from FY 2022-23. While we remain committed to fulfilling our 
fish and wildlife obligations, we will continue to seek proper sharing 
of these costs. It is undeniable that our members feel the financial 
impact of these ESA-related programs each month when they pay their 
power bills. We cannot have an open-ended obligation on customers that 
struggle to pay their electricity bills.
    Moreover, there is also an ongoing campaign to remove the Lower 
Snake River dams--an initiative that could have major ramifications for 
many cooperatives in the Pacific Northwest. These dams feature highly 
advanced and successful fish passage systems. The dams are on track to 
achieve standards of 96 percent average dam survival for young spring 
chinook and steelhead migrating downstream and 93 percent for young 
summer-migrating fish. Removing the Snake River dams would not 
guarantee increased salmon survivability, but this action will harm our 
communities, increase carbon emissions and enhance the likelihood of 
blackouts in the region.
    The Columbia River System Operations Draft Environmental Impact 
Statement (DEIS) concluded that breaching the four Lower Snake River 
dams would have an adverse impact on electric cooperative consumers, 
the reliability of the Northwest energy grid, and the global 
environment. The Snake River dams are an integral part of our 
electricity supply in the Pacific Northwest--powering 900,000 homes 
annually. Oregon's electric cooperatives are serious about our mission 
of delivering clean, affordable, reliable electricity to our members. 
The DEIS concluded that breaching the Snake River dams would have 
``long-term, major, adverse effects on power costs and rates,'' and the 
``rate pressure could be up to 50% on wholesale power rates.''
    A 40-50% increase in BPA's rate could lead to an increase of 
several hundred dollars a year on our members' electric bills. Our 
vulnerable populations--senior citizens and those on fixed incomes--
will be most impacted by the increase--people who shouldn't have to 
choose between medicine, food or paying their electric bills. We also 
take seriously our commitment to keep the lights on. The DEIS also 
concluded the dam breaching alternative would ``more than double the 
region's risk of power shortages.''
    Oregon's electric cooperatives are proud of our clean energy 
profile, with a power supply that is consistently over 90% carbon-
emission free. According to the DEIS, breaching the dams would create 
an additional 3.3 million metric tons (MMT) of CO2--a staggering 10% 
increase in power-related emissions across the Northwest.
Challenges of Serving Frontier Areas in the West

    HEC has been heavily involved in educating federal officials about 
the impact of their proposals regarding species that have been proposed 
to be protected under the ESA. In 2014, HEC commented on the Bureau of 
Land Management's Oregon Sub-Region Greater Sage Grouse Draft 
Management Plan Amendments and Environmental Impact Statement. The 
preferred alternative under this plan would have required HEC to 
eventually relocate or underground over 105 miles of transmission line 
and over 531 miles of distribution line to protect sage grouse habitat. 
Our greatest concern was the lack of analysis of the significant socio-
economic impacts that would arise to HEC and its members under the 
preferred alternative. The direct costs to the co-op of relocating or 
burying the transmission and distribution lines would have exceeded 
$400 million and would have bankrupted the co-op. HEC would simply have 
to terminate service. In short, the mitigation measures set forth in 
the preferred alternative were not economically feasible.
    Fortunately, HEC has not been compelled to implement this draconian 
level of mitigation to protect the sage grouse. However, it is 
undeniable that projects--such as permitting on easements, changing 
easements, or moving a line--are delayed because of the possible 
impacts. For instance, our easement came up for renewal with the 
Malheur Refuge, and it was declined by the U.S. Fish and Wildlife 
Service because they did not want power lines on the refuge. I had to 
explain to them that the electricity from these power lines serves 
their headquarters, fish weirs, and irrigation on the refuge. In 
another instance, one of our members had a piece of private land they 
wanted power delivered to. We had to ask for a BLM easement to tap into 
an aerial crossing where no pole would be set on federal land, because 
it was in sage grouse habitat. This process went on for a year until 
our member finally gave up. We have a similar situation where a 
renewable geothermal project is being held up because of an abandoned 
golden eagle nest. We are required to wait through the golden eagle 
breeding season to see if the eagles will reclaim the nest that has 
been abandoned for what we believe is two decades. We hope the U.S. 
Fish and Wildlife Service will deem the nest abandoned, and the project 
can resume. These project delays have an impact on the system 
reliability and cost.
Collaboration: A Path Forward

    I serve on the board of the High Desert Partnership, a group that 
brings stakeholders in Harney County together to tackle some of our 
community's hardest challenges--restoring forests and wetlands, 
mitigating wildfire, creating opportunities for youth, and growing our 
local economy. The logging industry used to be the heart and soul of 
Harney County. HEC's headquarters is across the street from an old mill 
that used to employ most of the people in the county. However, shifting 
ederal policies--such as the listing of the northern spotted owl--led 
to the closure of the mill. This is the story of many communities in 
Oregon, including my hometown which no longer exists. These ESA 
policies have had a lasting negative impact on local communities, and 
we needed to find a better way to bring people together to find common 
ground in addressing rural challenges and opportunities. The High 
Desert Partnership has had great success and we urge this committee to 
learn more about it to take on whatever challenges may be ahead.
Recommendations

    Electric co-ops support the underlying goals of the ESA, and we 
think it can be improved to work better for both species and 
communities. We need Congress to address the challenges posed by the 
ESA and co-ops stand ready to help this important effort. The 
designation of critical habitat can have enormous impacts on 
communities. Because of this, it is imperative that habitat 
designations are well thought out and based on sound scientific data. 
Electric co-ops support H.J. Res 46 because it retains the regulatory 
definition of habitat within ESA and provides clarity and certainty to 
communities where habitat is located. With that in mind we offer the 
following recommendations:

     Habitat should specify that only those areas that are 
            actually habitable at the time of critical habitat 
            designation are categorized as ``habitat.'' In addition, we 
            suggest the following key elements be considered when 
            designating both occupied and unoccupied critical habitat:

            --  Habitat features must be present at the time the area 
        is designated as critical habitat.

            --  A proposed designation should focus on specific 
        geographic areas.

            --  Habitat features must be present for one or more 
        relevant species' life stages; and

            --  An area must be sufficiently habitable for a species' 
        long-term survival.

     Addressing challenges posed by the ESA is needed, and co-
            ops stand ready to help this important effort. In addition 
            to our habitat specific recommendations, we urge Congress 
            to modernize the ESA and improve it by:


            --  Focusing on species recovery;

            --  Increasing transparency in how the Act is implemented;

            --  Utilizing data that is thorough, balanced, and based on 
        scientific standards and impartial peer review;

            --  Prioritizing proactive stakeholder collaboration, and 
        state and local government engagement.

    Meeting current and future energy needs is a major challenge. 
Rising to meet this challenge will require collaboration, creativity, 
and flexibility. HEC and our electric co-op brethren are ready to work 
with you, your colleagues in Congress, and your federal agency partners 
to meet these needs.
    Thank you for the opportunity to testify today and for your 
attention to the critical issues facing our nation. I look forward to 
working with all of you.

                                 ______
                                 

    Mr. Bentz. Thank you for being here. I now recognize Mr. 
Fischman for 5 minutes.

    STATEMENT OF ROBERT FISCHMAN, PROFESSOR OF LAW, INDIANA 
     UNIVERSITY MAURER SCHOOL OF LAW, BLOOMINGTON, INDIANA

    Mr. Fischman. Mr. Bentz, thank you for the invitation to 
testify today.
    The CRA bills under consideration today undermine Congress' 
long-standing emphasis on science-based decision-making. Even 
worse, they create irreconcilable conflicts with the judiciary, 
and thwart adaptation to new circumstances. This is especially 
true for the northern long-eared bat and the habitat definition 
rules.
    Instead, I suggest the Committee refocus its efforts to 
promote collaborative conservation that will require more 
funding for state agencies to revive declining species. It will 
require more Federal agency appropriations to list species 
while they are still threatened, rather than delay until they 
are endangered. It will require better coordination with 
agricultural subsidies and other programs to offer more 
incentives for private land managers to conserve habitat. 
Congress' aspirations to prevent extinctions can become a 
reality only if the safety net for species is extended before 
they reach the emergency room of the Endangered Species Act.
    Often, it seems that a partisan divide runs through Federal 
wildlife law. But I think everyone in this room can agree with 
Mollie Beattie's proposition: What a country chooses to save is 
what a country chooses to say about itself. Wildlife 
conservation is both a patriotic tradition and a self-
preservation tool for all the services nature sustains for us. 
What generates the rancor mostly is not whether we care for 
God's creation, but who should pay the costs--that is, how we 
choose to save species.
    State wildlife management is the first line of defense, yet 
states sorely lack funds. If you read your state's wildlife 
action plan--and if you haven't, you really should--those plans 
list the species of greatest conservation need. Across all 
states, that list now tops 17,000 species. These are all 
species that are facing threats in their ability to thrive. 
They are the ones most likely to decline into endangerment.
    If states were better funded, they could stave off listings 
when economic trade-offs are the least consequential. Reviving 
and enacting last year's Recovering America's Wildlife Act 
bills can staunch the flow of new ESA listings. As you know, 
though, the Federal Services don't receive enough 
appropriations to keep up. By the time most species get to the 
front of the listing line, the populations are so low that it 
is much more expensive to achieve recovery. Yet, we know that 
early collaboration enables more flexibility, and distributes 
the costs of species protection more evenly.
    Then there are the land managers who possess and take care 
of habitat. Often the landowners have been such good stewards 
that, even as their neighbors eradicated habitat, they 
conserved. Imposing on those good stewards the full cost of 
recovering species is unfair. But without adequate public 
recovery spending, what is left? Coercive regulation.
    Nonetheless, even the strictest wildlife conservation law 
can be leveraged with collaborative programs. I recently 
studied one program, section 4(d), which allows the Services to 
tailor otherwise strict prohibitions against take to species' 
conservation needs. It is one of the regulatory elements that 
Joint Resolution 29 would abolish for the lesser prairie 
chicken.
    Paradoxically, less stringent take rules may promote more 
conservation. My research revealed that almost three-quarters 
of 4(d) protective regulations substitute accommodative 
practice-based limitations, such as for routine agricultural 
practices for difficult-to-affect outcomes of an activity such 
as an injured bird.
    There are many other collaboration tools evident in 4(d) 
rules, including cooperative federalism, that I would be happy 
to talk about later. But that hardly exhausts the 
possibilities. In a compendium of well documented 
recommendations pulled together by Lowell Baier and Jerry Organ 
in a book due out later this year, there are scores of tools 
and examples drawn from almost every ESA program.
    I oppose these CRA resolutions because they move the 
guideposts that incentivize the difficult work of 
collaboration. Few infrastructure builders or miners 
participate in common-sense habitat conservation plans unless 
they are prompted to collaborate because of an ESA listing or 
the prospect of one.
    Thank you very much for the opportunity to testify.

    [The prepared statement of Mr. Fischman follows:]
 Prepared Statement of Robert L. Fischman, Distinguished Professor of 
           Law at the Indiana University Maurer School of Law
            on H.J. Res. 29, H.J. Res. 46, and H.J. Res. 49

    My name is Robert L. Fischman. I am the George P. Smith, II 
Distinguished Professor of Law at the Indiana University Maurer School 
of Law. I am also a member scholar of the Center for Progressive 
Reform. I testify today on my own behalf; the views I express should 
not be attributed to any organization with which I am affiliated. I 
have written about and taught the Endangered Species Act (ESA) for 
three decades. My publications are listed in curriculum vitae I 
provided to the subcommittee.
    The statement that follows reflects my view that piecemeal 
legislative fixes for specific species or local projects will not 
improve the performance of federal agencies in meeting the objectives 
of the ESA. Piecemeal legislation and micro-management of agencies risk 
undermining Congress' long-standing emphasis on science-based decision-
making. Even worse would be to enact carve-outs from the ESA through 
the Congressional Review Act (CRA). The CRA resolutions the 
subcommittee is considering would create irreconcilable conflicts with 
the judiciary and thwart adaptation to unexpected circumstances.
    Instead, I suggest the committee refocus its efforts to promoting 
collaborative conservation. That will require more funding for state 
agencies to prevent declining species from sliding to imperilment. It 
will require more appropriations for the Fish & Wildlife Service (FWS) 
and the National Oceanic and Atmospheric Administration (NOAA) to list 
species while they are still threatened rather than delay until they 
are endangered. It will require better coordination with agricultural 
subsidies and other programs to offer more incentives for private land 
managers to engage in habitat recovery efforts. Congress' aspirations 
to prevent extinctions can become a reality only if the safety net for 
species is extended before they reach the ``emergency room'' of the 
ESA. The ESA today is an indispensable tool of federal biodiversity 
conservation, but it can work better if states and private habitat 
managers have incentives to cooperate.
I. Why the ESA generates intense conflicts

    Often it seems that a partisan divide runs through federal wildlife 
law. But let me begin with Mollie Beatty's proposition to which I think 
we all subscribe: what a country chooses to save is what a country 
chooses to say about itself.
    Most everyone in Congress cares about wildlife conservation, both 
as a patriotic tradition and as a self-preservation tool for all the 
services nature sustains for us. The Endangered Species Act, for 
example, passed Congress with overwhelming majorities (unanimously in 
the Senate and 355-4 in the House).
    What generates the rancor, mostly, is not whether to care for God's 
creation, but who should pay the costs.
    State wildlife management is the first line of defense to prevent 
extinctions. Yet, states sorely lack funds. You likely read your 
state's wildlife action plan, which lists the ``species of greatest 
conservation need'' (SGCNs). These are the plants and animals facing 
serious threats to their ability to thrive. They are species most 
likely to decline into endangerment. If states were better funded, they 
could stave off listings when economic trade-offs are at the least 
consequential. Unless Congress enacts better state funding mechanisms, 
such as those in the Recovering America's Wildlife Act bills that died 
last year, the SGCN list of 17,118 will grow and spill into a deluge of 
new listings.
    The holes in the state wildlife safety net permit far too many 
species to decline to the point of near extinction. As you know, the 
FWS cannot keep up with the listing tidal wave. Hundreds of species 
already determined by the Services to warrant listing languish while 
the Services focus on other priorities. Of course, in this system of 
biodiversity triage, the animals closest to the brink of extinction 
should receive priority. But, by the time most species get to the front 
of the listing line, populations and so low and habitat so scare that 
it is much more expensive to achieve recovery.
    Then there are the landowners who possess habitat for imperiled 
species. Often these landowners have been such good stewards that, even 
as neighbors degraded habitat, they conserved. But once a species is 
listed, those farsighted conservation actions become a liability as 
habitat for a listed species may be critical for recovery. Imposing on 
those good stewards of creation the full cost of protecting species is 
inequitable. But, without adequate state or federal recovery spending, 
what is left is coercive regulation.
    Nonetheless, even the strictest wildlife conservation law, the 
Endangered Species Act, can be leveraged with innovative, collaborative 
programs. I recently studied one program, section 4(d), which allows 
the FWS service to tailor the otherwise strict prohibitions against 
take to the conservation needs of the listed species.\1\ One example of 
4(d) tailoring is the protective regulation for the threatened Mazama 
pocket gopher. It is practically impossible to detect harm from 
agricultural activities, such as plowing, to the pocket gophers nestled 
in their burrows. But a tailored rule shields from liability any 
``accepted agricultural or horticultural (farming) practices'' as long 
as soil disturbance does not penetrate deeper than a foot.\2\ That 
provides a clear standard for both farmers and regulators to track and 
allows agricultural activities to co-exist with species recovery.
---------------------------------------------------------------------------
    \1\ R.L. Fischman, V.J. Meretsky, M. Castelli 2021, Collaborative 
Governance under the Endangered Species Act: An Empirical Analysis of 
Protective Regulations, Yale J. Regulation 38: 976-1058 (2021).
    \2\ 50 C.F.R. Sec. 17.40(a).

    The wildlife agencies are cash poor but expertise rich. The 
landowners may be cash poor but habitat rich. But when they agree on 
certain practices and places where commercial activities can co-exist 
with threatened animals, the door to collaboration opens. My research 
on the 4(d) program shows that it can promote collaborative 
---------------------------------------------------------------------------
conservation rulemaking in several ways, including:

     Rewarding with liability shields those who conserved 
            habitat before listing triggered the ESA's prohibitions

     Encouraging prospective, good-faith collaborations to 
            promote more habitat conservation

     Clearly laying out what will be required for a 
            collaborative, tailored rule to make net contributions to 
            species recovery

     Working closely with states so that land-use plans reflect 
            species conservation goals

     Recalibrating collaborations in response to how well 
            species respond to anticipated recovery and harm-reducing 
            tactics

     Actively enforcing tailored restrictions to prevent free 
            riders from benefiting without contributing to 
            collaborative species recovery

    Paradoxically, less stringent take rules may promote more 
conservation for two reasons. First, takes of individual animals or 
specific patches of habitat do not necessarily impair recovery, which 
is measured by populations and habitat over a wide area. The bargain to 
allow some take in exchange for maintenance of key habitat advances the 
goal of the ESA. Second, relieving a strict ban on all individual 
animal takes in exchange practice-based standards is a bargain that 
puts aside difficult to detect and seldom enforced takes. More easily 
monitored practices may take individuals. But, if designed right, they 
can compensate by reducing the threats to species populations. Congress 
discovered this second approach early on in pollution control law, when 
it adopted practice-based standards (often best-technology standards) 
and sidelined ambient environmental standards that required tracing an 
action to some measurable harm in the air, water, or land.
    My research revealed that almost three-quarters of 4(d) protective 
regulations substitute practice-based limitations for difficult-to-
detect proximate consequences of an activity. In that respect, 
collaborative governance transforms the ESA from a statute that 
prohibits biological entities from crossing invisible ecological 
thresholds (i.e., harm, jeopardy, recovery impairment) into a 
regulatory program insisting on best practices. Greater compliance with 
collaboratively crafted, practice-based conservation requirements may 
improve the prospect for recovery, even if they are less stringent than 
the standard statutory prohibitions. That is a paragon of the ``win-
win'' scenario often promised by supporters of collaborative 
governance.
    There are many other collaboration tools evident in 4(d) rules, 
including cooperative federalism. But that hardly exhausts the 
possibilities. In a compendium of well-documented recommendations 
pulled together by Lowell Baier and Jerry Organ in a book due out later 
this year, there are scores of tools and examples drawn from almost 
every ESA program.\3\ I oppose these CRA resolutions because they move 
the guideposts that incentivize the difficult work of collaboration.
---------------------------------------------------------------------------
    \3\ L.E. Baier & J.F. Organ (eds.) forthcoming 2023, The Codex of 
the Endangered Species Act: The Next Fifty Years Vol. II (Rowman & 
Littlefield).
---------------------------------------------------------------------------
    Decades of research by Steven Yaffee and Julia Wondolleck 
demonstrate that successful conservation collaborations depend on 
``legal structures that establish management bottom lines'' for 
conservation goals. In about half of the hundreds of conservation 
collaborations they he studied, the ESA served as the ``regulatory 
driver'' of stakeholder cooperation.\4\ The stringent legal mandates 
create collaboration incentives to avoid more drastic outcomes (e.g., 
an endangered rather than a threatened listing).
---------------------------------------------------------------------------
    \4\ Steven L. Yaffee, Collaborative Strategies for Managing Animal 
Migrations: Insights from the History of Ecosystem-Based Management, 41 
Environmental. Law 655, 677 (2011).
---------------------------------------------------------------------------
    The collaborative governance literature teaches that behind the 
tentative successes, promising approaches, and skepticism that surround 
protective regulations is the need to craft incentives. Congressional 
joint resolutions that relieve the private sector of responsibilities 
for recovering imperiled species would reduce the motivation for 
participating in collaborations either to avoid listing or to recover 
already listed species. Flexibility to tailor rules must be constrained 
to avoid creating a carte blanche for continuing activities that thwart 
conservation. But collaborative rules must also offer some certainty to 
the regulated community that it can shoulder its share of the costs 
associated with recovery.
    This subcommittee does not appropriate, but it can foster better 
frameworks for conservation collaborations. Using the CRA to fix the 
ESA is like using a sledgehammer to restore habitat, or in Aldo 
Leopold's formulation ``remodeling the Alhambra with a steam-shovel.'' 
A disapproved rule ``shall be treated as though such rule had never 
taken effect.'' Moreover, a disapproved rule ``may not be reissued in 
substantially the same form, and a new rule that is substantially the 
same . . . may not be issued, unless the reissued or new rule is 
specifically authorized by a law enacted after the date of the joint 
resolution.'' \5\ The CRA does not define the scope of ``substantially 
the same'' or state who should make such a determination. But it would 
constrain the Services from refining their rules (especially the one 
related to critical habitat) in response to new information or to 
conform to a textual reading of the ESA. In some cases (such as the 
reclassification of the northern long-eared bat), the CRA would set up 
a conflict between the congressional mandate not to issue a 
``substantially the same'' rule and a court order.
---------------------------------------------------------------------------
    \5\ 5 U.S.C. Sec. 801(b)(2).
---------------------------------------------------------------------------
II. Three sets of rules affected by the bills under consideration in 
        this subcommittee hearing
A. Habitat Rule

    H.J.R. 46 would express congressional disapproval to invalidate the 
2022 repeal of the 2020 final rule defining ``habitat'' under the ESA. 
The 2020 rulemaking attempted to fill the regulatory gap noted by the 
Supreme Court in Weyerhaeuser Co. v. United States Fish & Wildlife 
Service.\6\ In that case, the Supreme Court held that the FWS could not 
designate critical habitat until if first determined that an area could 
be considered habitat. The 2020 rule defined ``habitat'' for the 
purpose of designating ``critical habitat'' as the ``setting that 
currently or periodically contains the resources and conditions 
necessary to support one or more life processes of a species.'' \7\ The 
definition would appear to exclude areas converted to agriculture or 
silviculture, such as the land at issue in Weyerhaeuser. It excludes 
many areas needed for species to adapt to climate change.
---------------------------------------------------------------------------
    \6\ 139 S. Ct. 361 (2018).
    \7\ 85 Fed. Reg. 81411 (emphasis added).
---------------------------------------------------------------------------
    But the bigger problem with using the CRA to revive the 2020 rule 
is its direct conflict with the text of the ESA. Congress defined 
critical habitat as both occupied and unoccupied areas. Occupied areas 
are limited to places that possess ``physical or biological features 
essential to'' the species' recovery. But unoccupied areas are not 
similarly constrained. They are to be designated if they ``are 
essential for the conservation of the species.'' \8\ By excluding the 
conditions of biological or physical features from the unoccupied 
component of critical habitat, Congress recognized the widely 
understood conservation fact that most species may not be recovered 
from the brink of extinction without the creation of new habitat to 
which they can disperse (or be translocated). The unoccupied habitat 
component of critical habitat aims to secure such new habitat for 
recovery.
---------------------------------------------------------------------------
    \8\ 16 U.S.C. Sec. 1532(5)(A).
---------------------------------------------------------------------------
    Therefore, any regulatory definition of habitat (such as a restored 
2020 rule) that excludes unoccupied habitat not currently or 
periodically containing physical or biological features essential to 
recovery is contrary to the ESA, which is clear that critical habitat 
consists of both occupied habitat containing those features but also 
unoccupied habitat without them. A court, especially one applying a 
textualist approach to statutory interpretation and one disfavoring the 
Chevron doctrine, would likely remand the 2020 rule to comply with the 
ESA. Such a legitimate judicial action would create a trap for the 
United States, which would be locked into the contradictory mandates of 
a court order and the CRA prohibition on promulgating a rule 
``substantially the same'' \9\ as the one disapproved by Congress.
---------------------------------------------------------------------------
    \9\ 5 U.S.C. Sec. 801(b)(2).
---------------------------------------------------------------------------
    I disagree with the 2022 rule's view that a regulatory definition 
of habitat would have little or no practical value. The FWS correctly 
points out that the scientific literature contains a diversity of 
definitions for habitat. Scientists define habitat differently 
depending on the type of species to which it applies, the geographical 
scale, the biome, and the purpose for which they apply it. Nonetheless, 
the Supreme Court's Weyerhaeuser decision does add an additional, 
implicit step to critical habitat designation not evident from the text 
of ESA section 4. The practical value of even a generic rule defining 
habitat is that courts would defer to a capacious definition under the 
Supreme Court's Chevron precedent. If such a generic definition had 
been part of the Code of Federal Regulations when the FWS had 
designated the critical habitat for the dusky gopher frog, the Court 
may well have decided the case differently. Because a CRA disapproval 
would prohibit ``substantially the same'' modification to the 2020 
habitat definition, this bill would lock in a regulatory framework that 
would prevent federal listing agencies (or, at least NOAA) from 
complying with Congress' critical habitat mandate.
    Conservation collaborations & funding, such as the ones I discuss 
in Part I (above) better address the inequities of critical habitat 
designation in unoccupied areas.
B. Northern Long-eared Bat Reclassification

    HRJ 49 would exercise CRA disapproval of the rule reclassifying the 
northern long-eared bat from threatened to endangered. My 
interpretation of the effect of this bill would be that it would 
restore the bat to its prior threatened listing. Such an exercise of 
the CRA would place the FWS in a Kafkaesque bind where the CRA 
reinstates a threatened listing already found by a federal court to be 
arbitrary and capricious. Center for Biological Diversity v. Everson 
held that the threatened listing failed to fully consider the 
extinction risk in the most significant portion of the bat's range and 
improperly constrained its analysis of the foreseeable future.\10\ The 
court stated that the ESA requires the Service to ``look not only at 
the foreseeability of threats, but also at the foreseeability of the 
impact of the threats on the species.'' For the bat, this would require 
consideration of the controllable threats posed by habitat loss and 
logging in combination with the unconstrained, contagious disease 
sweeping through the species. The court also emphasized the importance 
of cumulative impacts in conservation. In other words, the Services 
must consider all sources of extinction risk--not just the primary 
factor driving imperilment. As a result of these problems with the 
threatened listing, the court remanded the rule but did not vacate the 
``threatened'' listing decision. Instead, it ordered the FWS to make a 
new listing decision consistent with the decision. The 2022 rule did 
respond to the problems in the threatened listing identified by the 
court. If a CRA disapproval is enacted, then the 2022 reclassification 
would be treated as if it were never promulgated. That would put the 
United States in violation of the court's decision. Because the CRA 
prevents promulgation of a rule ``substantially the same,'' it is not 
at all clear how the FWS could comply with the judiciary's order.
---------------------------------------------------------------------------
    \10\ 435 F. Supp. 3d 69 (D.D.C. 2020).
---------------------------------------------------------------------------
    The northern long-eared bat is a peculiar choice for CRA 
disapproval for another reason. Many of the activities not subject to 
prohibition in the threatened listing's 4(d) protective regulations 
appear in the 2022 endangered listing as actions unlikely to result in 
a violation of section ESA 9. Although not an absolute shield from 
liability, even the endangered listing provides landowners and 
livestock graziers reassurance that their enterprises will not be 
significantly impaired--especially given the rarity of incidental take 
prosecutions. I discuss the effectiveness of substituting activity-
based constraints for the stricter ESA section 9 take prohibition in 
Part I of this testimony (above).
C. Lesser Prairie-Chicken DPS listings and 4(d) protective regulations

    HJR 29 would exercise CRA disapproval of a set of three rules that: 
list the southern distinct population segment (DPS) of the lesser 
prairie-chicken as endangered, list the northern distinct population 
segment (DPS) of the lesser prairie-chicken as threatened, and create 
an ESA section 4(d) protective regulation. By the time the FWS listed 
the southern DPS, it was too late to qualify for threatened listing. As 
discussed above, one of the reasons why funding increases to state 
wildlife agencies is crucial is to address species of greatest 
conservation need before they decline to the brink of extinction. 
Similarly, increased listing appropriations for the FWS would 
facilitate earlier listing, before a species on the brink is no longer 
abundant enough to lose out on the conservation collaborations, 
including those incentivized by protective regulations under ESA 
section 4(d).
    The FWS listed the northern population before it declined to the 
point where there was little room for trade-offs of bargains (as is the 
case in the south portion of the species' range). The northern DPS rule 
sets out incentives to promote better conservation practices in 
exchange for relief from the incidental take prohibition. These include 
routine agricultural practices on existing cultivated lands, prescribed 
fire, and grazing pursuant to a site-specific management plan developed 
by a FWS-approved party and revised every five years. The grazing 
provision is especially important to ensure survival of the LPC's 
grassland habitat.
    HJR 29 would undermine the conservation benefits of the private-
public partnerships that undergird the northern DPS 4(d) rule. It would 
also undermine the reward of liability relief offered to land managers 
who have agreed to conduct their enterprises in a manner consistent 
with prairie-chicken conservation. The result would likely be worse 
habitat-shaping practices and declines in the recovery prospects for 
the two DPSs.
III. Conclusion

    The most effective step Congress could take to improve the track 
record of the ESA and reduce conflicts about its application is to 
enact comprehensive biodiversity protection legislation. Most declining 
species in the United States are not on the brink of extinction. A 
conservation program for sustaining these species could succeed with 
much greater flexibility than the ESA. The ESA often demands 
modification of commercial activities because we do not take reasonable 
measures until species are at a relatively high risk of extinction. If 
we had a set of programs to slow unsustainable practices before 
biodiversity reached the point of potential collapse, then we would 
avoid many of the train wrecks that have tarnished the image of the 
ESA. It is a program of last resort, and we ought to rely less on the 
ESA and more on preventive biodiversity health initiatives to address 
ecological integrity.
    For instance, it can be difficult to promote both economic 
development and species protection when very little habitat remains. 
The larger the area, the more feasible trade-offs become. Early 
planning, before every last scrap of habitat is needed for a species to 
cling to existence, enables more flexibility and can distribute the 
costs of species protection more evenly. Some candidate conservation 
agreements include this kind of flexible approach, but they tend to be 
developed when it is too late to realize their potential because 
species populations are too small. We need legislative incentives to 
engage in such planning before a species is on the verge of 
listing.\11\
---------------------------------------------------------------------------
    \11\ R.L. Fischman, 2004, Predictions and Prescriptions for the 
Endangered Species Act, Environmental Law 34: 451.
---------------------------------------------------------------------------
    Short of comprehensive reform and better funding of state & federal 
wildlife agencies, this subcommittee should support the existing ESA 
tools that spark collaborative conservation. Collaborative governance 
is a kind of informal contracting for public goods among stakeholders 
where enforceable rules circumscribe the negotiating domain. One tool 
is the widely noted incidental take permit program with its associated 
habitat conservation plans. The bills at issue before the committee 
today bear more directly on another key ESA tool, the 4(d) protective 
regulations that set ground rules for ongoing collaborations in which 
people who control habitat can advance conservation in exchange for 
liability shields from ESA section 9 prohibitions.

                                 ______
                                 

    Mr. Bentz. Thank you, Mr. Fischman. I now recognize Mr. 
Hineman for 5 minutes.

  STATEMENT OF DON HINEMAN, PAST PRESIDENT, KANSAS LIVESTOCK 
                  ASSOCIATION, DIGHTON, KANSAS

    Mr. Hineman. Chairman Bentz, Ranking Member Huffman, and 
members of the Subcommittee, thank you for this opportunity to 
appear before you today.
    I am here to testify in support of House Joint Resolution 
29 regarding the listing of the lesser prairie chicken. That is 
very important to me. I farm in and ranch in western Kansas, 
where my family has farmed and ranched since 1886. The lesser 
prairie chicken, obviously, predates us in that part of the 
country, and we must and can find ways to co-exist.
    I want to respond to the assertion this morning that 
Republican environmentalists are extinct, or very nearly so. In 
fact, I claim that title for myself, both by virtue of my post-
graduate-level training and degree, but, more importantly, by 
my history of 50 years of management of my farm and ranching 
operation in Kansas. It occurred to me just this morning that, 
like the ESA, I am celebrating my 50th anniversary.
    In addition to representing Kansas Livestock Association, 
which I have been involved with for many years, I also spent 12 
years in the Kansas House of Representatives, and 2 of those 
years as House Majority Leader. So, I am familiar with this 
setting and this environment.
    I truly believe this rule, if allowed to stand, will not 
only adversely affect me and my neighbors, it also will hinder, 
rather than help, sustaining the recovery of the lesser prairie 
chicken.
    Prior to the final rule, significant voluntary conservation 
efforts were geared toward the LPC. Farmers and ranchers like 
me took advantage of USDA conservation programs like the 
Conservation Reserve Program, Conservation Stewardship Program, 
and the Environmental Quality Incentives Program. My son and I 
have frequently used the expertise at USDA as we applied for 
those various programs. USDA, through those programs, have 
offered great help. And I offer more detail in my written 
remarks, but I assume that you are familiar with those 
programs.
    But in addition to the help that comes from USDA, there 
have been voluntary conservation efforts underway starting in 
2013 under a consortium composed of fish and wildlife agencies 
in the affected states. And by the way, there are five states 
that contain the LPC habitat: Kansas, Colorado, Oklahoma, 
Texas, and New Mexico. Their efforts are yielding fruit. They 
began in 2013. They have, to date, expended $65 million on 
behalf of mitigation and enhancement of habitat for lesser 
prairie chicken. The annual surveys conducted from 2013 to 2020 
show an increase in the population of lesser prairie chicken 
from less than 17,000 to more than 36,000--very nearly 37,000. 
That is a pretty dramatic increase in a very short period of 
time.
    But there are two things going on. No. 1 is the voluntary 
conservation efforts partnered with USDA for the benefit of the 
target species. But also it is the nature of the lesser prairie 
chicken that they are a boom-and-bust species. Their success is 
dependent primarily on rainfall in their native territory.
    Back in 2012/2013, when we were under the threat of a 
listing, that was a drought period. Numbers were low. They have 
recovered since then. But I will tell you that we are currently 
in the third year of another essentially historic drought. 
Prairie chicken numbers are going to drop. Everyone that makes 
their living in that area is suffering: farmers, ranchers, the 
communities, and native species as well. The answer to that is 
let the voluntary conservation efforts continue, and allow them 
to prove their worth and their validity in enhancing their 
populations, and patience for the rainfall to return. Because 
when the rains return, the grass will grow, the range will 
flourish, and the lesser prairie chicken will be back.
    Part of the 2016 Federal court ruling that vacated the 
previous listing indicated that part of the reason for their 
ruling was the failure on the part of the Wildlife Service----
    Mr. Bentz. Mr. Hineman, if you could wrap up, please.
    Mr. Hineman [continuing]. To consider voluntary 
conservation efforts. It appears that we are right back there 
again.
    The 4(d) rule is also problematic. I certainly appreciate 
the exemption for cropping operations, but ranchers have no 
such exemption, and are required to develop a management plan.
    But as of today, the number of approved entities----
    Mr. Bentz. Mr. Hineman, we are going to have to ask you to 
stop, because we have to go to the next panel. But we 
appreciate your testimony and thank you very much. And your 
testimony is going to be in the record, so thank you for that.

    [The prepared statement of Mr. Hineman follows:]
 Prepared Statement of Don Hineman, Farmer and Rancher, Dighton, Kansas
                            on H.J. Res. 29

Hearing on H.J. Res. 29, Providing for congressional disapproval under 
chapter 8 of title 5, United States Code, of the rule submitted by the 
 United States Fish and Wildlife Service relating to ``Endangered and 
  Threatened Wildlife and Plants; Lesser Prairie-Chicken; Threatened 
  Status With Section 4(d) Rule for the Northern Distinct Population 
  Segment and Endangered Status for the Southern Distinct Population 
                               Segment''

    Chairman Bentz, Ranking Member Huffman, and Members of the 
Subcommittee, thank you for the opportunity to testify today in support 
of H.J. Res. 29, a resolution to disapprove the U.S. Fish and Wildlife 
Service (FWS) final rule titled: ``Endangered and Threatened Wildlife 
and Plants; Lesser Prairie-Chicken; Threatened Status With Section 4(d) 
Rule for the Northern Distinct Population Segment and Endangered Status 
for the Southern Distinct Population Segment'' (hereinafter ``Final 
Rule'').
    I am Don Hineman, a rancher and farmer in Lane County Kansas, where 
some of the land we operate on today was first homesteaded by my great-
grandfather in 1886. I have been active in both Kansas Livestock 
Association and National Cattlemen's Beef Association and served as 
President of KLA in 2001. My commitment to industry organizations 
continues to this day, as I presently serve on the Legislative 
Committee for National Sorghum Producers. I served in the Kansas House 
of Representatives from 2009 until 2021, when I retired (voluntarily). 
I held the office of Kansas House Majority Leader in 2017 and 2018.
    I believe this rule, if allowed to stand, will not only adversely 
affect me and my neighbors, but it will also hinder, not help, further 
recovery of the lesser prairie chicken (LPC). To understand, the 
Subcommittee must recognize the scope of activities aimed at conserving 
the LPC prior to the Final Rule and what has happened since the rule 
was proposed.
    Prior to the Final Rule, significant voluntary conservation efforts 
were geared toward the LPC. Farmers and ranchers, like me, took 
advantage of U.S. Department of Agriculture (USDA) conservation 
programs like the Conservation Reserve Program (CRP), the Conservation 
Stewardship Program (CSP), and the Environmental Quality Incentives 
Program (EQIP).
    USDA, through CRP, contracts with farmers on a ten to fifteen-year 
basis to plant environmentally sensitive farmland to perennial, native 
vegetation, in exchange for an annual rental payment. Production of 
commodity crops, except managed gazing or haying under a conservation 
plan, is prohibited. I believe CRP has resulted in significant benefit 
to the LPC in my area. However, CRP acres are being threatened because 
Congress, in the last Farm Bill, decreased the rental rates compared to 
fair market rental rates. This policy decision, in addition to 
eliminating certain mid-contract maintenance cost-share payments and 
high commodity prices, has led some expiring CRP acres to return to 
crop production.
    The Conservation Stewardship Program, unlike CRP, provides 
incentive payments to farmers to adopt conservation practices on 
working lands. CSP practices, like no-till on cropland and rotational 
grazing on pasture, provide additional habitat and food sources for the 
LPC.

    In addition to USDA conservation programs, a regional voluntary 
conservation plan, known as The Lesser Prairie-Chicken Range-Wide 
Conservation Plan (Range-Wide Plan) \1\ was undertaken by the Western 
Association of Fish and Wildlife Agencies (WAFWA). The Range-Wide Plan 
was coupled with the Range-Wide Oil and Gas Candidate Conservation 
Agreement with Assurances (CCAA).\2\
---------------------------------------------------------------------------
    \1\ https://wafwa.org/wp-content/uploads/2013/10/
LesserPrairieChicken_RangeWideConservation Plan_2013.pdf
    \2\ https://wafwa.org/wpdm-package/range-wide-oil-gas-candidate-
conservation-agreement-with-assurances-for-the-lesser-prairie-chicken/
?wpdmdl=23006&refresh=643874519f1ca1681421393& 
ind=1652297845773&filename=LPCRWP_CCAA-with-CI_02282014.pdf

    The Range-Wide Plan and CCAA established a framework where the oil 
and gas industry could identify a location for development and 
determine if it would have an impact on the LPC using a matrix in the 
Range-Wide Plan. Based on the level of potential impact at the 
development site, the oil and gas developer could make a mitigation 
payment into the conservation fund in exchange for take protections in 
the event of a listing. Those oil and gas mitigation funds were then 
available for WAFWA to contract with farmers and ranchers to apply on-
the-ground conservation activities to benefit the LPC. This could 
include prescribed burns, removal of brush adverse to the LPC, other 
land management strategies like grazing plans, and even long-term 
conservation easements. This structure raised approximately $65 million 
and according to WAFWA, ``As of December 31, 2022, there were 126 
industry Participants1 with 5,707,580 acres of industry leased or 
controlled private lands enrolled in the CCAA.'' \3\
---------------------------------------------------------------------------
    \3\ https://wafwa.org/wp-content/uploads/2023/03/WAFWA-2022-LPC-
CCAA-Annual-Report-03. 31.2023.pdf

    The previously mentioned voluntary efforts were simultaneously at 
work as early as 2013. According to annual WAFWA surveys the LPC 
numbers grew from approximately 16,724 total population in 2013 to 
36,278 in 2020.\4\ While recent WAFWA surveys showed a decline in the 
population in the last year, WAFWA stated: ``An estimated total 
population decrease of 6,913 LPC was observed from 2021 to 2022 (20.6% 
decrease); however, this decrease was not statistically significant at 
the 90% confidence level (90% CI: 2,205, 6,328).'' Certainly, the 
previous year's decline and what is likely to be a decline in the 
coming year can be directly linked to severe drought in the region. The 
fact that declines have not been worse in the face of this historic 
drought, is a credit to the conservation that has already been put on 
the ground.
---------------------------------------------------------------------------
    \4\ https://wafwa.org/wp-content/uploads/2022/11/LPC--
RangeWidePopSize2012-2022.pdf

    In 2021, in the face of an increasing LPC population and 
significant voluntary conservation efforts, the FWS decided to propose 
listing the LPC as threatened and endangered species under the 
Endangered Species Act (ESA), despite having a previous listing 
invalidated by a federal court in 2016. Part of the 2016 federal court 
decision to vacate the previous LPC listing decision was the failure of 
the FWS to consider voluntary conservation efforts and the impact of 
those efforts on the species. It appears that FWS has once again 
attempted a listing of the LPC without fully considering voluntary 
---------------------------------------------------------------------------
conservation and its impact on the LPC population.

    Once the LPC listing proposal was announced, it began to have an 
impact on voluntary conservation activities. Under the threat of civil 
enforcement actions, no farmer, rancher, or landowner wants to 
voluntarily raise their hand and acknowledge the presence of a 
threatened or endangered species. Residents of western Kansas are an 
independent group, and the potential of having FWS restrict activities 
on private property is something that will make landowners avoid 
cooperative agreements, whether it is with a public or private entity.

    One particular part of the Final Rule that is especially burdensome 
on ranchers is the portion of the Final Rule known as the 4(d) Rule. 
Section 4(d) of the ESA allows the FWS to develop regulations for 
threatened species ``advisable to provide for the conservation of such 
species.'' This often takes the form of incidental take protections. In 
the Final Rule, the FWS extended incidental take protections to routine 
agricultural activities associated with cultivated agriculture. The FWS 
extended this protection to farmers while acknowledging:

        Lesser prairie-chickens travel from native rangeland and CRP 
        lands, which provide cover types that support lesser prairie-
        chicken nesting and broodrearing, to forage within cultivated 
        fields supporting small grains, alfalfa, and hay production. 
        Lesser prairie chickens also maintain lek sites within these 
        cultivated areas, and they may be present during farming 
        operations.\5\
---------------------------------------------------------------------------
    \5\ 87 Fed. Reg. 29476 (June 1, 2021).

    As both a farmer and a rancher, I appreciate this incidental take 
protection for cultivated land, but I am significantly disappointed the 
FWS did not extend this protection to my native grass acres used for 
grazing cattle. The FWS notes that habitat loss is a major factor in 
the decline of the species population. If that is the case, why would 
an agency go out of its way to subject ranchers to the threat of civil 
enforcement, despite their native range acres being the sole reason the 
LPC continues to exist today? To make matter worse, in the Final Rule, 
the FWS said the only way ranchers could get incidental take 
protection, is if the landowner follows a ``a site-specific grazing 
plan developed by a `Service-approved party.' '' Under the Final Rule a 
``Service-approved party'' means ``the individual or entity must 
possess adequate training or experience, typically 5 years or more, in 
the fields of wildlife management, biology, or range ecology.'' Not 
only is the FWS forcing ranchers to subject their management decisions 
to a government approved third-party with no ranching experience, but 
as of today, the FWS has yet to designate a single Service-approved 
party.
    The lack of any meaningful incidental take mechanism leaves 
ranchers exposed to severe fines despite having managed their land for 
years to sustain the existing LPC populations. It would only reason, 
that in the absence of private Service-approved parties, the USDA, 
Natural Resource Conservation Service (NRCS) technicians could easily 
provide this type of assistance, but NRCS has declined to become a 
Service-approved party under the 4(d) rule citing lack of capacity.
    Even though the 4(d) protections for ranchers in Kansas, Colorado, 
and Oklahoma is a deeply flawed system, ranchers and farmers in Texas 
and New Mexico are in a far worse situation. These producers have no 
incidental take protection opportunities because they are located in 
what is called the Southern Distinct Population Segment (DPS). FWS took 
the unprecedented step to create two distinct populations regions, 
despite offering no evidence that the species are genetically 
different. It then deemed the Southern DPS endangered and the Northern 
DPS threatened. This simply defies logic and puts all of agriculture in 
the Southern DPS at risk.
    Given the failure of the FWS to properly consider voluntary 
conservation efforts and its failure to provide adequate protections 
for ranchers who are currently conserving the bird, I believe that H.J. 
Res. 29 is the appropriate response to the misguided Final Rule for 
listing of the LPC as threatened and endangered. I ask the Natural 
Resources Committee to approve H.J. Res. 29 favorable for passage as 
soon as possible.

                                 ______
                                 

    Mr. Bentz. With that, I thank all the witnesses for their 
testimony. We will now recognize Members for 5 minutes each for 
questions, and we will begin with Mr. LaMalfa for 5 minutes.
    Mr. LaMalfa. Thank you, Mr. Chairman. I greatly appreciate 
it. I want to go to Mr. Guertin on Fish and Wildlife Service.
    If you were to conclude that human activities such as being 
carried out by private forest landowners is not a cause for the 
NLEB demise, then could the Service recognize the critical role 
landowners play in ensuring the habitat species depends on?
    Could we recognize that what the landowners do is a 
positive in an overall habitat situation?
    Mr. Guertin. Thank you for your question, Congressman.
    We work very closely with landowners and encourage them to 
put in place management practices that will benefit all of 
these species. So, with long-eared bat, the vision here is to 
put in place a lot of proactive conservation opportunities to 
allow people to go out making their living on their land and 
adjoining Federal land, state land, elsewhere, and these 
flexibilities are embodied through the 4(d) rule that gives us 
those flexibilities, and it allows us to work with the timber 
product industry, with the outdoor recreation industry, and 
others.
    But the point of it is, we would greatly welcome a 
participation by landowners and positive conservation on their 
land.
    Mr. LaMalfa. Well, I am sure they would like to 
participate, but if indeed they are found to not be causing 
harm, would the Service recognize more that they do play a 
great role in habitat in general, such as the work they do to 
ensure fire safety?
    Mr. Guertin. Yes, sir. We believe private landowners play 
an enormous role in species conservation across the United 
States, and, in particular, as we are dealing with species like 
the long-eared bat, we want to offer a lot of incentives, 
positive conservation, conservation without conflict, and tools 
to promote just that type of collaboration.
    Mr. LaMalfa. OK, because I think it needs to be recognized 
that it really isn't forest management being carried out on 
private lands that is the stressor for the bat, and concern 
here.
    Mr. Horton, I appreciate your testimony, as well. An 
additional layer of regulation upon forest management, how is 
that going to be beneficial for the long-term conservation of 
the bat?
    Mr. Horton. I thank you for the question. Frankly, I don't 
believe it will. Habitat is not lacking. In fact, it is 
increasing. We have protections in place.
    The issue is white-nose syndrome, pure and simple. So, 
imposing further restrictions on the industry is not helpful. 
In my state, we have millions of acres of land that will not be 
managed. It is either in wilderness area, set-asides, parks, 
things like that. And beyond that, just our forests are getting 
older and bigger, so there is no shortage of habitat.
    Mr. LaMalfa. Those are very wide areas. Has it been shown 
that the white-nose syndrome is tied toward management on other 
lands, or something else going on in non-managed lands too?
    Mr. Horton. It has nothing to do with management of the 
forest.
    Mr. LaMalfa. Sorry, I can't hear you.
    Mr. Horton. I am sorry. It really, frankly, has nothing to 
do with management of the forest. It really is about white-nose 
syndrome in the roosting areas, in the caves.
    Mr. LaMalfa. So, if the Service continues to make listings 
that don't get at the root of a problem, and place more 
restrictions on landowners, what is the likely outcome in all 
aspects of habitat and general forest health?
    Mr. Horton. Mr. Chair and Congressman, wildlife require a 
lot of diversity in the forest. And what we see with set-asides 
is that it prevents us from doing active management.
    There are entire suites of young forest species that can be 
harmed when we are not able to regenerate the forest into a 
young forest condition, which is fairly common across the range 
of the northern long-eared bat. It is all about balancing age 
classes and forest types for the various different species.
    And it is also harmful for the industry, which already has 
a lot of restrictions placed upon us.
    Mr. LaMalfa. Did having a fairly even-handed, without ups 
and downs between administrations, definition of ``habitat,'' 
did that provide enough certainty that you would be able to 
operate in a way that was positive for habitat, but also good 
for industry, the ongoing forest health and restoration?
    Mr. Horton. Mr. Chair and Congressman, it is important for 
us to have certainty. When we make long-term investments in our 
industry, we have to have some certainty on fiber supplies, and 
know where we can manage and where we can't manage. So, when we 
have uncertainty and we have changing conditions, it makes it 
very difficult.
    So, having a good, clear definition of ``habitat,'' and the 
role habitat plays in the conservation of species is helpful to 
us so we are not constantly having to change in midstream.
    Mr. LaMalfa. So, some certainty, but the certainty 
shouldn't also be complete shut-down too, right?
    I will leave it at that and yield back, Mr. Chairman. Thank 
you.
    Mr. Bentz. Thank you, Mr. LaMalfa. I recognize Ranking 
Member Huffman for 5 minutes.
    Mr. Huffman. Thank you, Mr. Chairman, and thanks to the 
witnesses.
    Mr. Guertin, it has been suggested that you sort of have a 
choice between listing and supporting the collaborative 
recovery efforts that everybody likes to see. But, in fact, 
when you make a listing rule as you did in the case of the 
lesser prairie chicken, you can integrate habitat conservation 
plans and candidate conservation agreements with assurances and 
things like that into the rule.
    And, in fact, Fish and Wildlife did that in the case of the 
lesser prairie chicken. Am I missing something?
    Mr. Guertin. Thank you for your question, Congressman. Yes, 
sir. When we listed the lesser prairie chicken, we designated 
two DPSs, a northern and a southern. The northern listing 
included a lot of flexibility in the form of a 4(d) rule under 
the Endangered Species Act, which allows us to offer 
flexibilities to our stakeholders on the landscape to go about 
working on their economic activities, whether it is grazing, 
farming, or outdoor recreation.
    As you pointed out, a number of these tools, a number of 
these mechanisms, that are in place that will allow us to 
support that ongoing work vital to America's economy, while 
balancing that with the needs for this species that is on a 
downward spiral toward extinction if we don't take action now.
    Mr. Huffman. Thank you.
    Professor Fischman, I appreciate your testimony about why 
applying the Congressional Review Act to the Endangered Species 
Act is so problematic. It is a blunt instrument no matter what 
subject matter you are using it for; it ties the hands of 
agencies to go back and do any kind of regulation in that same 
space.
    But why is that such a problem when it comes to science-
based species management?
    Mr. Fischman. The problem, as you say, comes with the 
restriction of congressional disapproval prohibiting the agency 
subsequently from making a substantially the same or 
substantially in the same form rule. So, that locks in the 
status quo as circumstances change on the ground and in the 
water.
    In addition to global change, local circumstances as a 
result of development, as a result of pathogens like white-nose 
syndrome, often change situation very rapidly. And a species 
that may be doing fine right now might need new or different 
sorts of recovery elements.
    Mr. Huffman. So, if a species crashes, or there is new 
science that would inform science-based wildlife management, 
passing a CRA would tie the hands of an agency in its ability 
to use that.
    Mr. Fischman. That is my guess. Now, of course, courts have 
not yet ruled on this. But what the CRA says is that it 
prohibits subsequent regulation that is substantially the same 
as the rule that was disapproved of. And that is very much in 
contrast to a situation where there is an existing rule without 
a CRA, where an agency is actually required to revisit the 
status of the species every 5 years and, if circumstances 
warrant, update the listing.
    Mr. Huffman. What about H.J. Res. 46, which reimposes the 
very narrow definition of ``habitat'' from the Trump 
administration? Why would locking that definition of 
``habitat'' into ESA practice be so problematic?
    Mr. Fischman. I think that is problematic because the 2020 
habitat rule violates Congress' clear command in the Endangered 
Species Act to include within critical habitat that is 
unoccupied all areas that are essential for the conservation of 
the species without regard to the features that are currently 
or periodically present.
    In other words, the CRA would lock into the Code of Federal 
Regulations a rule that I think courts would likely overturn as 
being contrary to the clear text of the Endangered Species Act.
    Mr. Huffman. And sometimes species move into unoccupied 
habitat. Sometimes you need to restore habitat that is maybe 
currently not suitable if you are serious about recovering a 
species. Is that fair to say?
    Mr. Fischman. That is fair to say. And that is why the 
definition in the statute of critical habitat does not include 
the restriction on the presence of physical and biological 
features that it requires for current habitat in areas that are 
not occupied.
    Mr. Huffman. Thank you, Professor.
    I yield back.
    Mr. Bentz. Thank you, and Congresswoman Luna is recognized 
for 5 minutes.
    Mrs. Luna. Can you guys hear me? OK.
    I just want to note that this has been a topic that has 
come up before with the ESA, but of the endangered species, 
only about 3.7 of the species have ever been delisted. And the 
reason I bring that up is because I obviously care about 
animals, but it is in my firm belief that when you have certain 
species that are taking resources away from others that need to 
be listed, it doesn't really accurately serve out the purpose 
of what the Endangered Species Act was supposed to do.
    So, the legislation introduced by my colleagues rightly 
seeks to disapprove of the Fish and Wildlife Service's rules 
regarding the status of lesser prairie chickens and northern 
long-eared bats under the ESA. And by removing species from 
that list that have recovered, and focusing resources on 
species that are still at risk, we can better prioritize our 
conservation efforts and allocate resources where they are 
needed the most.
    The Fish and Wildlife Service and NOAA's National Marine 
Fisheries Service share the responsibility for administering 
the ESA. Ensuring that these agencies are properly listing and 
delisting species is something that is particularly important 
to me, especially being that I have many endangered species in 
my area, to include the manatee and green sea turtle, which are 
struggling to recover accurately.
    My question would be for Mr. Guertin.
    When deciding the new rules like those of the lesser 
prairie chicken and northern long-eared bat, what information 
does Fish and Wildlife Services consider?
    Mr. Guertin. Thank you for your question, Congresswoman.
    We go through a very robust, scientifically-driven process 
to make a determination. I don't want to bore you with all the 
details of it, but in general terms we are either petitioned to 
look at the status of species based on constituent concerns or 
those raised by a court, or just based on our work with our 
State Fish and Game and Tribal partners we have noticed a 
difference in the status and trend of how a species is doing on 
the landscape.
    So, there is a first gate that you would go through, so to 
speak, which is called a 90-day finding, where we are either 
presented with information that causes us to say there is 
positive information in here, and we are going to initiate a 
more formal rulemaking process called a 12-month finding, or we 
will say that there is not adequate information here, so we 
will decline looking at the status of that species.
    And then we go through a very robust formula, a five-factor 
analysis, looking at threats including disease and predation, 
looking at adequacy of regulatory mechanisms, looking at 
habitat or threatened to destruction. And we rely on science 
largely from the states, the tribes, our colleagues, USGS, 
NOAA, and others, and work that through a decision matrix.
    A lot of it is a species status assessment, but it is 
scientifically driven, Congresswoman.
    Mrs. Luna. So, being that the recovery rates and species 
are ever-changing, how often does the Fish and Wildlife Service 
review those rules for the species?
    Mr. Guertin. We are required every 5 years to do a status 
assessment of listed species, and do a determination of where 
they stand, where the trend lines are showing us their 
population is going.
    You are familiar with our work in the manatee right now. 
They are currently listed as a threatened species. Some 
advocates have asked us to put in an uplisting to endangered.
    Mrs. Luna. That needs to be upped.
    Mr. Guertin. We don't think that is the case now, even as 
we are dealing with those mortality events the last couple of 
winters. There are still 8,000 or 9,000 animals out there in 
that population, and they are able to withstand, and we have 
been very aggressive working with our partner agencies in 
remediation to get them through this tough patch, mostly on the 
East Coast.
    Mrs. Luna. Just real quick, because, obviously, that is 
something that--we love our manatees in Florida. Don't let that 
mistake you.
    But just out of curiosity, why are you guys not upgrading 
that? Because we have a huge issue with red tide. I believe it 
is in part because of the massive sewage that we get dumped 
into our ocean, and it contributes to the nutrients for the red 
tide. But our manatees are dying. And then we obviously have 
the boating accidents. So, why are they not being uplisted?
    Mr. Guertin. We look at the totality of information, 
Congresswoman. In our scientific judgment we believe, in the 
case of the manatee, particularly in Florida, the status of 
threatened is adequate, provides almost all the safeguards that 
are needed, particularly given the robust partnership we have 
with Florida Power and Light, State Game Commission, private 
landowners, and others. We have wakes in place with the outdoor 
recreation industry, all kinds of proactive measures.
    We are focused very much on what is going on in the Indian 
River Lagoon. That is where the unusual mortality event has 
been taking place. Through a combination of rescue, rehab, 
supplemental feeding, and other techniques we have been able to 
stabilize that. And we got a lucky break this past year with 
the winter weather on our side.
    But at this point, the Service's view is that the 
threatened status gives them the safeguards they need to ensure 
survival going forward.
    Mrs. Luna. OK. I guess my last question for you would be--
our beaches have sea turtles, and we are one of the few spots 
in the world for the nesting grounds for these sea turtles. And 
one of the issues that we have is beach renourishment. We have 
the Army Corps of Engineers that is not wanting to do beach 
renourishment, but, obviously, we have an endangered species 
there.
    So, just in your opinion, do you believe that other 
organizations should be held accountable if they are knowingly 
preventing habitat protection? For example, our sea turtles.
    Mr. Guertin. Congresswoman, I am not as familiar with the 
specifics on your case you are raising there, but in very 
general terms we work very collaboratively with the Corps of 
Engineers. These beach nourishment and replenishment projects 
are very complex. We would be glad to follow up with you or 
your leadership----
    Mrs. Luna. Habitat.
    Mr. Guertin [continuing]. Here in DC to get you a briefing 
and talk some more about that issue, because it is going to be 
a complicated one. But we are glad to follow up with you and 
set up some briefings here or in your district.
    Mrs. Luna. Just real quick, who loves sea turtles? Like 
everyone loves them, right? So, I think the Army Corps of 
Engineers should work with you guys and give us our habitat for 
those sea turtles.
    Thank you, I yield my time.
    Mr. Guertin. Thank you, Congresswoman.
    Mr. Bentz. Thank you. The Ranking Member for the Full 
Committee, Mr. Grijalva is recognized for 5 minutes.
    Mr. Grijalva. Thank you, Mr. Chairman, and thank you for 
the sea turtles. I like them, as well.
    [Laughter.]
    Mr. Grijalva. I think they are wonderful, iconic, and need 
to be saved at whatever cost.
    Anyway, Professor Fischman, as you mentioned, we are facing 
a biodiversity crisis. Republican solutions are to weaken and 
erode the critical tools our nation uses to prevent extinction. 
Using the Congressional Review Act is extreme. These three 
resolutions undermine protections for endangered species, and 
are going to weaken the ability of agencies to restore habitat, 
period.
    But Professor Fischman, another area, many of the bills 
that also undermine the Endangered Species Act and that 
committed Republicans are pushing this year prohibit judicial 
review. And the Congressional Review Act also limits judicial 
review. How would the lack of court oversight and 
accountability undermine the science-based decisions that are 
essential under the Endangered Species Act?
    And Professor, how much discretion do agencies have in 
designating critical habitat units?
    How does the 2020 definition of ``habitat'' limit that 
flexibility, going back to that other point?
    But under judicial review, the right to redress by any 
citizen or other organizations, could you comment on that, 
please?
    Mr. Fischman. Thank you for the question.
    On judicial review, I think it is helpful as a check on 
agencies that are often subject to political pressures, whether 
it be whipsawed by a change in administration from one party to 
another, or in a tug of war between Congress and the 
Administration. And agencies always have a lot of discretion, 
particularly in Endangered Species Act listing cases, where 
courts find that agency interpretation of scientific and 
technical information is where deference to agency action is at 
the broadest.
    But courts do insist that the agencies produce a record 
that shows that they have considered all of the relevant 
science and rationally connected their decision to the 
information contained in that science.
    In the rare situation where courts overturn an agency 
action, it is usually because the agency did very poorly. That 
is not generally because the agency didn't understand the 
science, but the agency may have been constrained by political 
pressures on making its decision.
    Mr. Grijalva. And on the issue of the definition of 
``habitat.''
    Mr. Fischman. Yes. I would say there are two elements in 
the definition of ``habitat.''
    One is the judgment about which areas are essential to 
conservation. I think that judgment is an area where there is 
maximal discretion for agencies to act, and courts seldom 
review that part of the critical habitat designation.
    The other aspect is the features on the land or in the 
water that justify the judgment that an area is essential, and 
the presence or absence of that feature is an area where the 
agencies are more constrained by existing science. Congress 
told the agencies in the Endangered Species Act to designate 
two types of critical habitat.
    One type of critical habitat is habitat that is currently 
occupied by the species. In that type of critical habitat, the 
agency has to find both that it is essential for conservation, 
and also that those physical and biological features are 
present.
    The other type of critical habitat: areas that species need 
to disperse, to grow. If there is aridification, areas that 
species may need to be translocated to. In those types of 
critical habitat which are not currently occupied, Congress 
said consider only whether it is essential for conservation. 
Congress did not include the constraint in unoccupied habitat 
that there be physical or biological features currently or 
periodically present.
    Mr. Grijalva. OK. Thank you.
    I yield back.
    Mr. Bentz. Thank you. The Chair recognizes Mr. Duarte for 5 
minutes.
    Mr. Duarte. Thank you, Mr. Chairman.
    Thank you, panel, for being here today. I am from an area 
in California where we have a number of endangered species, 
single species management schemes impacting our rural residents 
and farmers and landscapes, as well as other species that are 
impacted.
    One is in the Sierra Nevada forests. Spotted owl protection 
in the Sierra Nevada forests have limited sustainable logging 
there for decades now. We see where the forest lands have not 
been sustainably logged, wildfires are eviscerating hundreds of 
thousands, in some years, millions, of acres of what otherwise 
would have been not only good habitat for spotted owls if 
overgrown forests are, in fact, good habitat for spotted owls; 
I don't think the science any longer agrees with that--but also 
impacting many other species, as well as human safety and 
welfare.
    The whole Central Valley being smoked up with forest fires 
and air quality issues, we now have the state of California 
telling employers that they are responsible for the air quality 
their employees breathe while in the Central Valley, and while 
these forest fires are underway. We have had many human deaths 
over in Sonoma County, up in Paradise, up in Yuba County, all 
through the state.
    Now I hear, Mr. Fischman, that we have 17,000 additional 
species to list through state and Federal cooperation, more 
government money, more government power. How do we convince 
ourselves in rural America that humans aren't species number 
17,001 when it comes to prioritization and welfare?
    Mr. Fischman. Thank you very much for that question. The 
17,000 species are the species that I think we can spend the 
least amount of money to prevent them from needing the 
protections of the Endangered Species Act. So, in terms of 
investing money, investing resources, investing experience and 
expertise, those 17,000 species are species that today are not 
threatened or endangered, but they are in decline.
    Mr. Duarte. So, let's drill down on that a little bit. 
Thank you.
    When we talk about investing money, there is, of course, 
government money, the easy stuff we just print. But then there 
are also jobs, there are logging industries, there is farming, 
there is grazing, there are all kinds of economic activity that 
used to take place in some of these communities, some of these 
landscapes that no longer happens. And when you talk about 
investing money, how do you account for the loss of economic 
activity and its impact on species number 17,001, the rural 
human?
    Mr. Fischman. I think that there is a lot of conflicting 
evidence about the extent to which species of greatest 
conservation need--those 17,000 species may have had an impact 
on economic activity. But I think, typically, they do not. I 
think management for those species is something that typically 
does not constrain----
    Mr. Duarte. Let me ask Mr. Guertin a question.
    The Delta smelt, you seem broadly familiar with Fish and 
Wildlife Service's efforts. The Delta smelt in California, I 
haven't seen one in 2 or 3 years. I didn't know how important 
it was to begin with, honestly. But we have still had hundreds 
of thousands of acres of California farmlands and urban and 
rural landscapes go dry during droughts because of smelt 
restoration and conservation efforts.
    Has that been a good investment? Has that been a successful 
investment? And if not, what efforts can we engage now to do 
better and, if not save the smelt, lessen human impacts? What 
is underway?
    Mr. Guertin. Thank you for your question, Congressman.
    Our vision is to use the Endangered Species Act to restore 
and enhance fish, wildlife, and plants, and their habitats. We 
try our best, using the best available science to pinpoint our 
priorities, to work with Congress through the annual 
appropriations process to secure the funding to do that, and 
then to prioritize our effort for individual or----
    Mr. Duarte. The smelt. I mean, come on. There is really not 
a bigger, utter economic environmental failure than the 
restoration efforts of the Delta--or we can go to the spotted 
owl up in the forest. That is pretty close.
    When do you guys just say, hey, that didn't work, let's 
stop, and stop impacting humans and other species and other 
landscapes until we have at least a pilot program that shows 
some promise?
    Mr. Guertin. Sure. So, should I continue, Mr. Chairman?
    Mr. Bentz. Probably not.
    Mr. Guertin. Or for the record?
    Mr. Bentz. We have another panel to go.
    Mr. Guertin. OK, I am sorry. We can follow for the record, 
sir, or set up a briefing for you or your staff to further 
discuss, if that would be helpful.
    Mr. Duarte. I appreciate that.
    Mr. Guertin. You bet.
    Mr. Bentz. Thank you. I ask unanimous consent that the 
gentleman from Kansas, Representative Mann, be allowed to 
participate in today's hearing.
    Without objection, so ordered.
    Mr. Mann, you are recognized for 5 minutes.
    Mr. Mann. Thank you, Mr. Chairman, and thank you all for 
being here today.
    You know, we see the Administration continue to push down 
these regulations and make these activities that, certainly in 
my district in Kansas, makes it hard for agriculture, hard for 
oil and gas industry. I represent the first district of Kansas, 
which is really 60 counties in the western two-thirds of our 
state.
    A question for you, Mr. Hineman. Thank you for coming from 
Kansas and being here today. As you know firsthand, the lesser 
prairie chicken population is highly responsive to weather 
conditions. We are in a drought right now. Can you speak to how 
existing conservation efforts have supported the population 
during this current drought we are in and that most of Kansas 
is experiencing?
    Mr. Hineman. Thank you, Congressman, for the question, and 
also for being here.
    I think the evidence is in the annual survey of prairie 
chicken numbers. In a very short period of time, a 7-year 
window from 2013 to 2020, their numbers more than doubled. At 
least a component of that increase was due to those voluntary 
efforts on the behalf of the states' fish and wildlife services 
partnering with stakeholder organizations and entities to 
achieve that goal.
    Mr. Mann. I think that is a really important point. I mean, 
we have to acknowledge that the lesser prairie chicken in 
Kansas, and Colorado, New Mexico, Oklahoma, you look at the 
population of the bird, they almost directly mirror rainfall. 
We are in a dire drought, so, of course, the populations of 
these birds would be down.
    A second question for you again, Mr. Hineman. Despite the 
U.S. Fish and Wildlife Service delaying the effective date of 
implementation to March 27, I remain concerned about the 
ability for farmers and ranchers to become compliant with the 
rule. How will operations like yours be impacted by this new 
rule, its limited time to comply, and the lack of resources for 
producers?
    Mr. Hineman. Well, thank you, Congressman. It is very 
problematic, especially for ranchers more so than for crop 
producers who have an exemption under the 4(d) rule. But the 
4(d) rule requires management plans for ranchers that are 
approved by an approved third-party entity. At the time I 
prepared my remarks we believe there were no approved entities. 
We have since learned that there are three: one individual in 
Texas and two organizations in Oklahoma and Colorado. None in 
Kansas, by the way.
    You would think that USDA, with their expertise and 
background, with programs like CRP and CSP, could be an 
approved entity. But they are resisting that. We are told that 
they claim that there is a lack of capacity to take on that 
chore, and I certainly understand that. But it raises the 
question in my mind whether those three entities that have been 
approved so far have the capacity to do the job.
    And by the way, it was supposed to be done by the end of 
March, last month.
    Mr. Mann. And I think that is important for this Committee 
to understand. It is not just the regulations, the poor science 
that is used to push these regulations, but also the timing of 
them, where there is protest period and then that expires, and 
then we expect that these regulations get jammed on our 
producers with a week's notice. And these are cropping 
decisions and grazing plans that take weeks, months, sometimes 
years as part of these operations. So, it is not just the 
regulations, but it is the timing of their implementation, as 
well, both of which, in my view, are very, very problematic.
    Thank you for waiving me on to be here, and thanks for the 
time. I yield back.
    Mr. Bentz. Thank you. I recognize Representative Peltola 
for 5 minutes.
    Mrs. Peltola. Thank you, Chairman Bentz. I would like to 
yield my time to Representative Huffman, please.
    Mr. Huffman. I thank the gentlelady.
    Mr. Hineman, I just want to follow up a little bit. I 
appreciated what you said in your testimony. I haven't given up 
on the concept of Republican environmentalists, and I love the 
fact that there are some friends across the aisle that are 
comfortable with that term. And Ms. Luna was refreshingly 
strong in her interest in protecting sea turtles and manatees. 
So, I celebrate that wherever I can find it.
    But the politics of these issues have shifted a lot in the 
last 50 years. And I guess the piece of your testimony I wanted 
to ask you about was when you said that the listing of the 
lesser prairie chicken would somehow thwart or undermine the 
voluntary and collaborative conservation efforts that have been 
underway in recent years. I was confused by that, because it 
seems to me that the whole point of those voluntary and 
collaborative efforts is to avoid getting to the place where 
you have take liability under the ESA.
    And we have a listing rule that embraces habitat 
conservation plans and candidate conservation agreements with 
assurances and best management practices. It has been crafted 
in a way to provide some safe harbor for those who have done 
the right thing. What am I missing there? Why is listing 
somehow at odds with these voluntary efforts?
    And I guess, the flip side of that, if you pass a CRA which 
effectively prevents you from ever listing this species, and 
the whole incentive structure that has brought you to these 
voluntary efforts was an attempt to avoid take liability, and 
you have taken take off the table with a CRA, why wouldn't that 
be extremely undermining of voluntary and collaborative 
conservation efforts?
    Does my question make sense?
    Mr. Hineman. It does. And let me go back to the first 
component of your question: why wouldn't there be a more 
collaborative effort on the part of producers?
    I believe it is because there is a perception in the 
country that the relationship between governmental agencies--
the Service, in this case, and producers--has more of an 
adversarial flavor to it than one of collaborative partnership, 
and that is really the way it should be.
    Mr. Huffman. So, you believe the listing creates an 
adversarial element?
    Mr. Hineman. Well, and I point to the 4(d) rule, where 
there were no approved entities to help with the grazing plans 
initially. Now there are three. That is still very woefully 
inadequate, I believe, to accomplish the task necessary for all 
the ranchers within that five-state region.
    Mr. Huffman. I appreciate your testimony on that.
    Let me ask you, Professor Fischman. I just have to believe 
that it is important to get these voluntary and collaborative 
efforts rolling, and to get habitat conservation plans and 
other less prescriptive ESA structures to have a backstop of 
take liability at some point. And if you legislatively remove 
that from even the realm of possibility, I just don't know why 
anyone would participate in them. Am I missing something?
    Mr. Fischman. No. And in fact, my former advisor at the 
University of Michigan, Steven Yaffee, studied hundreds of 
collaborative, ecosystem-based efforts, and found that the 
Endangered Species Act in a little over half of them was the 
principal spur that enabled the successful ones to move 
forward.
    For sure, we need carrots as well as sticks. But sometimes 
a stick is crucial for both prompting people to collaborate, 
but then also to provide clear objectives for what the 
collaboration should achieve.
    Mr. Huffman. OK. So, just to reiterate, if you pass a CRA 
delisting the lesser prairie chicken, you are almost 
effectively preventing any future listing of that species by 
wildlife officials. That is likely to undermine collaborative 
efforts to restore habitat and recover the species. Is that 
your view?
    Mr. Fischman. Yes.
    Mr. Huffman. Thank you, I yield back.
    Mr. Bentz. Thank you. We recognize Ms. Hageman for 5 
minutes.
    Ms. Hageman. Thank you. Having attended numerous hearings 
at this point, there is something that always strikes me about 
the makeup of the panels. What we have is we have three 
gentlemen that actually produce things.
    One is Mr. Horton with the Minnesota Forest Industries 
producing timber so that we have housing in our country and can 
address a situation where we have a housing crisis in this 
country, and have a shortage of timber.
    We have a gentleman who works to produce electricity so 
that we can live in a civilized society, and so that our 
government employees can live the kind of lives that they live 
with all of the amenities associated with that.
    And we have a gentleman who represents the livestock 
association, and they produce food.
    The two other witnesses are government employees, neither 
of whom really produce anything, but have a lot of opinions 
about such things as the government using sticks in order to 
beat our producers into submission to do what our government 
employees and our law professors want them to produce.
    I definitely disagree with the idea that Republicans are 
not conservationists, that we don't care about the environment, 
and we don't care about species recovery. But we also recognize 
that when a government does things that it should not be doing, 
it eventually becomes incapable of doing the things that it 
should.
    The point that Ms. Luna keeps making is that, to the extent 
that we focus on species that are not endangered or that we 
focus on habitat that is not critical habitat, and we spend our 
resources in trying to protect that or in limiting our timber 
companies from operating or our mining companies from being 
able to produce the resources that we need, again, for a 
civilized society, or we prevent our farmers and ranchers from 
producing food, eventually we are going to become the very kind 
of third-world countries that really don't care very much about 
the environment. I think, if you go to the Congo and a variety 
of other countries, you can see how they in fact treat the 
environment.
    So, what I want to do is I always want to focus on the best 
way we can use the limited resources that we have. And I 
recognize that printing money as we have been so recklessly for 
the last couple of years, and having government spend the 
massive amounts of dollars that it has, it has only increased 
the cost of everything from food, to transportation, to our 
ability to, again, produce electricity, to be able to produce 
our livestock, to be able to produce food.
    So, what we want to focus on on our side of the aisle is 
the pragmatic aspect of producing resources while also 
protecting our species. One of the things that I know from 
working with the Endangered Species Act for years is that, 
while I do believe that it was intended as a good bill, a good 
piece of legislation for purposes of protecting species, it has 
evolved over time to something that is used quite readily by 
environmental groups and NGOs to control land and water solely 
for the purpose of controlling land and water.
    In other words, it makes the environmental groups massive 
amounts of money to try to prevent us from producing 
electricity, producing timber, producing livestock. But it has 
not been as successful at protecting these species. And I 
think, Mr. Guertin, you were just about to admit there have 
been an awful lot of resources that have been expended on the 
smelt, I believe, and the northern spotted owl that was, in 
reality, probably money that was misspent.
    So, I don't think that it is fair to take the position or 
to imply that by pushing back on the idea of some of what I 
think are rather ridiculous efforts to control our ability to 
produce food and resources, that that means you are anti-
environmentalist, and all you want to do is destroy the 
species, because we don't. But we do want to use our resources 
in the most effective manner possible.
    And I also want to say, Mr. Fischman, who is it who is 
responsible for legislating in this country? Is that the 
legislative branch? As a law professor, isn't that what the 
legislative branch is supposed to do?
    Mr. Fischman. Yes.
    Ms. Hageman. OK. And in terms of the experts--I know you 
talk about experts quite a bit, but some of the experts over 
time have made some pretty serious mistakes in terms of the 
species that we have been talking about today, wouldn't you 
agree, Mr. Guertin? And it has cost us millions, if not tens of 
millions of dollars.
    Mr. Guertin. I am not sure I agree completely, 
Congresswoman, no. A lot of trade-offs have been made, 
priorities are set. The vision is always for the agency to 
prioritize where we will make the most significant impact and, 
we agree with you, make the investments where they will make 
the most significant impact for the country, for our wildlife 
heritage and for our people.
    Ms. Hageman. That is right, but we also have to be able to 
produce resources in order to generate the revenue so that we 
can spend it on government employees and law professors, so 
that they can expound on the things that they really don't know 
a lot about, such as producing food, producing timber, and 
producing electricity. Correct?
    Mr. Guertin. Congresswoman, it is an annual appropriation 
we go through to get the resources for the Fish and Wildlife 
Service. We are in there with every other Federal agency coming 
to Congress. I understand the Constitution. Congress provides 
the funding, so we come to you and your colleagues.
    Ms. Hageman. And we also prioritize where we want to spend 
the money, as well.
    Mr. Guertin. Yes, I understand that, Congresswoman.
    Ms. Hageman. Correct.
    I yield back.
    Mr. Bentz. Thank you. I recognize Representative Gonzalez-
Colon for 5 minutes.
    Mrs. Gonzalez-Colon. Thank you, Mr. Chairman, and good 
morning to everybody here today.
    First of all, I want to just say that in the case of Puerto 
Rico we have 69 listed endangered species between 2 of them, 
the Puerto Rican parrot and the coqui frog. And a few years 
ago, the Service delisted the Monito gecko due to the success 
of their recovery efforts, and they are considering delisting 
many others.
    I want to say, just before my question, that I want to 
thank the Fish and Wildlife Service for its efforts to recover 
our Puerto Rican parrot, and the Puerto Rican Parrot Recovery 
Program is one of the examples of the successful Federal, 
state, and local partnerships that should be a model for the 
whole nation in how all stakeholders should work together, 
rather than in conflict or litigation. But that is our case, 
right?
    I do have a question for Mr. Horton.
    You said in your testimony that the Habitat Conservation 
Plans and guidance documents are being developed to clarify 
what timber management practices are allowed on public lands 
within the northern long-eared bat range. However, you 
expressed concerns about how these will be implemented. Can you 
tell me specifically what are the concerns with the Habitat 
Conservation Plans?
    Mr. Horton. Mr. Chair and Congresswoman, these guidance 
plans have not been finalized yet. We are working under interim 
guidance plans right now. And what we often find is that they 
set the baseline, and then actual on-the-ground managers can go 
beyond that baseline.
    It has happened most often on our national forests, where 
control of forest management is at a relatively low level, and 
they will often take a very liberal approach to management. So, 
we could see large areas set aside from active management of 
our forests at the whim of that district ranger or field staff-
type person that feels like they need to go beyond the baseline 
that has been set by the Fish and Wildlife Service.
    The other concern that we have is we have Habitat 
Conservation Plans in process in six states. But as you have 
heard, this bat covers 37 states. So, that means there are 31 
states that are behind the eight ball. And there is a real 
potential for active forest management to be shut down if they 
don't get some guidance and get a plan in place between now and 
well, frankly, they are uplisted today.
    Mrs. Gonzalez-Colon. What policies should Congress be 
approving today, besides the resolutions we are considering to 
provide such clarity and modernize this Act?
    Mr. Horton. Mr. Chair and Congresswoman, Frankly, I don't 
know quite what would help immediately. I just ask that folks 
understand that, when it comes to our forests, anything that 
you do in the forest, including doing nothing at all, benefits 
some species and harms others. There are ramifications to our 
actions.
    So, we need to have a balanced approach. Forests are very 
dynamic. They are changing all the time, and we need to 
understand that not doing anything is just as harmful, if not 
more harmful, than proper forest management with the levels of 
guidelines, and guidance, and controls that we already have in 
place.
    Mrs. Gonzalez-Colon. Thank you.
    I yield back.
    Mr. Bentz. Thank you. The Chair recognizes Chair Westerman 
for 5 minutes.
    Mr. Westerman. Thank you, Chairman Bentz, and thank you to 
the witnesses for being here.
    I was born a conservative and a conservationist, Mr. 
Huffman. I think a guy named Teddy Roosevelt is considered the 
father of conservation. So, I think Republicans have had a 
standing as caring about the environment, caring about 
conservation for a long, long time.
    And the root word of conservation is ``conserve.'' You are 
being a lot more conservative today, Mr. Huffman. I am glad we 
found consensus on that.
    I think the focus of my questions is, I want to ask 
questions of Mr. Horton and Mr. Guertin.
    Mr. Horton, in your testimony you said you are not just a 
wildlife biologist, but a certified wildlife biologist.
    And Mr. Guertin, I assume your role at Fish and Wildlife, 
you are a wildlife biologist?
    Mr. Guertin. Not by professional training, no, sir.
    Mr. Westerman. You have been around it a lot?
    Mr. Guertin. I have been a Regional Director and Deputy 
Director for 10 years now.
    Mr. Westerman. OK. Then, Mr. Horton, I will direct these 
questions to you mostly.
    The northern long-eared bat, what benefit will stopping 
forest management have for the northern long-eared bat?
    Mr. Horton. Mr. Chair and Congressman Westerman, it would 
actually be detrimental to the bat in the long run. We create 
openings and forest corridors and diversity within the forest 
through logging activity that often mimics natural disturbance. 
And the bats need those areas for feeding, for flying, and for 
taking care of their young.
    And we also preserve those habitat elements that they use 
for their maternal roosts. These roost trees are often 
protected in our forest management guidelines and under forest 
certification. So, further restriction will be harmful to the 
bat.
    Mr. Westerman. Yes. And I have a forestry degree. I admit I 
am not a wildlife biologist, but the two kind of go together. 
And when I first heard about the northern long-eared bat and 
this terrible white-nose syndrome, I called a friend who is a 
very good wildlife biologist, and I said, ``Hey, I am trying to 
learn about bats. What kind of habitat do they like?''
    He said just what you just said, an open area, open canopy 
where they can feed. They like the early successional habitat 
that you get when you open up the forest floor. So, it made 
absolutely no sense to me that, in the name of protecting the 
bat, there were actions and talk of stopping forest management. 
And I agree with what you said; it is counterproductive.
    And Mr. Guertin, I saw you nodding your head. Do you agree 
that stopping forest management hurts bat habitat?
    Mr. Guertin. Thank you for your question, Mr. Chairman.
    Just to clarify, the Service is not trying to halt the 
logging industry, wood product industry in the range of the bat 
species. What we have done is based the listing upgrade on this 
dire threat it faces from white-nose syndrome. And our vision 
is implementing all these proactive, collaborative tools, and 
formulas, and approaches to work in partnership with our 
stakeholders on the ground.
    I am glad I got to meet Mr. Horton before the hearing. We 
compared notes. We have some homework to do to help his 
industry partners navigate some of these tools we have put in 
place.
    Mr. Westerman. I hear what you are saying, but I have also 
talked to managers in the Forest Service that have told me 
that, if they find the bat on the Federal land, that their 
forest management is done, that they will be devoting all of 
their resources to studying the bat, they will take all the 
resources they have, take it away from doing forest management 
plans.
    And then also I hear from Forest Service personnel that 
they get conflicting information from the Fish and Wildlife 
Office, depending on which office they talk to. So, there seems 
to be a lot of inconsistency on that.
    But I can tell you in my home state, what I have witnessed 
with forest management, with another endangered species, the 
red-cockaded woodpecker, when you create habitat for the 
woodpecker you create habitat that falls right in line with 
what the bat likes, but also all kinds of other species, 
including game animals, turkey, deer, quail, songbirds. And 
when you get a flush of vegetation, you get more plant 
biodiversity.
    So, it just seems counterproductive to me, if we get in a 
situation where we are creating a scenario where we can't 
manage Federal lands for the habitat that would be more 
beneficial to the bat, and instead of addressing the real 
problem, which is the white-nose syndrome--and Mr. Horton, I am 
glad you pointed out that when you go in, if you are doing 
proper forest management, you are not going to go in and cut 
down den trees, you are going to leave trees where the bats can 
den.
    And I also noticed in your testimony you said the number of 
den trees, according to FIA data, has increased by, what, 29 
percent?
    Mr. Horton. Yes, that is correct. It is 29 percent when we 
are talking cull trees.
    Mr. Westerman. Fifteen-inch diameter average, or----
    Mr. Horton. Yes, 15-inch diameter and better increased by 
29 percent.
    Mr. Westerman. So, what does that tell you about forest 
health, when we have a 29 percent increase in den trees?
    Mr. Horton. Well, we know that there is an awful lot of 
mortality in our forests. A lot of trees die of old age. So, 
when we are talking about standing dead trees, they are 
definitely increasing across the landscape.
    Mr. Westerman. So, the bats aren't suffering from a place 
to roost according to the FIA data. So, the best we can do is 
create a healthy forest.
    I appreciate the indulgence, and I yield back.
    Mr. Bentz. Thank you, Mr. Chair. The Chair recognizes Mr. 
Stauber for 5 minutes.
    Mr. Stauber. Thank you very much, Mr. Chair.
    Mr. Horton, thank you again for joining us today. 
Scientists and the Fish and Wildlife Service agree the decline 
of the northern long-eared bat is caused by white-nose 
syndrome. As a wildlife biologist, can you briefly discuss how 
white-nose syndrome came to be, and its effect on the bat?
    Mr. Horton. Mr. Chair and Congressman Stauber, my 
understanding is white-nose syndrome is an old-world fungus 
from Europe and Asia. We don't know exactly how it got here, 
but it was first seen in 2006 in caves near Albany, New York. 
It is lethal. The bats that get it develop this fungus around 
their nose, this white fuzz around their nose. It causes them 
to wake up during hibernation, when they should be conserving 
their energy and their water in their systems, and they fly 
about, burning up energy, getting dehydration, and ultimately 
die. There is no known cure for it.
    Mr. Stauber. The Fish and Wildlife Service chose to uplist 
the northern long-eared bat to endangered, a misguided decision 
that will have lasting consequences.
    Fortunately, Minnesota, along with Wisconsin and Michigan, 
are in a little better place than most, due to habitat 
conservation plans put in place. Can you elaborate on what 
effects the uplisting will have on the lake states area 
forestry projects with the HCP in effect, and what effect the 
uplisting will have on projects in states that do not have HCP 
in effect?
    Mr. Horton. Thank you, Mr. Chair and Congressman Stauber.
    The Fish and Wildlife Service has been very responsive in 
the development of the HCP, and we feel OK about it. It will 
still put some further restrictions on it, and it is all about 
implementation. When we find out how the Forest Service is 
going to respond to the HCP is where I am most interested. I 
have had a couple of folks on our National Forest say, well, 
there are only 14 known roost trees on the Chippewa National 
Forest, but they are talking about 1,000-acre buffers around 
them. So, we could potentially see 14,000 acres where it is 
going to have some different management around it.
    But in those states without an HCP, they are going to have 
to get incidental take permits to conduct forest management. 
And, frankly, I don't know if the Fish and Wildlife Service has 
the capacity to handle an awful lot of new requests for 
incidental take permits.
    Mr. Stauber. In your testimony, you mentioned how forestry 
projects boost the northern long-eared bat habitat, and that 
the area of forest land in the NLEB range has increased by more 
than 5 percent since the 1950s. How does the forest products 
industry help to boost the habitat?
    Mr. Horton. Mr. Chair and Congressman Stauber, thank you 
for that.
    We do, through active forest management, create early 
successional habitat. And these open flyways and open 
understories provide feeding areas for the bat while we retain 
those habitat features that they need for other parts of their 
life cycle, including roosting areas and places to raise their 
young.
    Across the landscape, there is an abundance of the roosting 
habitat, and large trees have increased dramatically within 
Minnesota over the last 45 years. We now have 19 million more 
trees over 19 inches in diameter than we did in 1977. We have 
more forests. We have more large forests, more old forests than 
we did. So, we feel that, at least in the lake states, we are 
doing a good job of providing habitat for the northern long-
eared bat.
    Mr. Stauber. I agree with you.
    In closing, the Fish and Wildlife Service's uplisting will 
limit forest products that boost habitat for a species whose 
populations are declining due to no fault of humans at all. It 
is imperative we pass H.J. Resolution 49 to undo this uplisting 
and return some sanity to the Endangered Species Act while we 
can.
    Mr. Chair, I yield back.
    Mr. Bentz. Thank you. I recognize myself for 5 minutes.
    Mr. Flippence, you have worked with the BLM for years and 
years trying to arrange for your transmission lines and so 
forth across a huge area, 20,000 square miles. The question I 
am going to ask has to do with the U.S. Fish and Wildlife's 
approach as we have heard it today, that it doesn't necessarily 
have to coordinate with the BLM or the Forest Service because 
it enjoys authority perhaps greater than the BLM.
    So, has it been your experience--let's go back to the 
refuge for a moment--that you have seen U.S. Fish and Wildlife 
coordinate with the BLM or with whoever it might be that is the 
on-the-ground managing agency, or have you seen U.S. Fish come 
in and simply say, ``It is our way or the highway''? And if you 
haven't had that experience, feel free to say you haven't, and 
we will move to my second question.
    Mr. Flippence. Thank you, Chairman Bentz. I would say yes. 
I deal with five different BLM districts in my territory, since 
it is so large, and I do not see that coordination going on 
between the Wildlife Service and the BLM. Usually things are 
split.
    Mr. Bentz. Under the rule that I am trying to have 
repealed, and the one I have been looking at during this 
hearing and previously, what seems to have happened is the 
Biden administration has taken the opportunity to go into the 
Weyerhaeuser case and focus upon the fact that the court did 
not define ``habitat.'' And the argument is that, since the 
court didn't define it, the Administration will. And their 
definition, oddly enough, has changed. In fact, it says, ``For 
reasons further outlined below, we find that instead it is more 
appropriate to,'' and then it lists a number of things, and it 
uses about eight pages to describe their thinking.
    This must be pretty rough on someone like you, trying to 
figure out which direction you should run a power line, not 
knowing what the standards might be and not knowing how much 
they might change from one administration to the next. Am I 
correct in saying you, or we, as Congress, the congressional 
level, should suggest to these agencies that they coordinate 
their efforts so at least you are not getting jerked around 
more than once every 4 years or 8?
    Mr. Flippence. Thank you, Congressman Bentz. Yes, I think 
it is very important that there be some normalcy to what we do 
every day.
    I feel that even if the Fish and Wildlife wasn't involved, 
the BLM still manages the areas that we are in, and do a good 
job. I don't think there will ever be a rollback, even if H.J. 
Resolution 46 passes. I don't think that that is going to roll 
back anything because the BLM still manages and does a good job 
of managing all of that land.
    Mr. Bentz. And they certainly take into account the sage 
grouse. There is no doubt of that. Having been engaged in those 
kinds of discussions for many years myself.
    So, what appears to be happening, and we see this in the 
water space, and we certainly see it in other spaces such as 
your 20,000 square miles, much of which is BLM--is a movement 
toward making these into gargantuan game preserves, as opposed 
to anything else, kind of a sole-purpose approach, and that 
seems to be the direction.
    Would you object to that? I hope this is not what is 
happening. Please tell me I am wrong.
    Mr. Flippence. Congressman Bentz, I wouldn't object to 
that.
    I think we are trying to make a lot of space available for 
species out there. But it puts a lot of pressure on trying to 
serve my members. And as I mentioned before, there is a lot of 
cost to that.
    Mr. Bentz. There is. And because I am going to be out of 
time, moving back to the forest for just a minute--the 
challenge is scale, because one administration says 9 million 
acres, and the next one says, no, no, 6 is fine. And no one 
even knows what a million acres of timber truly is. But the 
fact that one would take 3 million acres that we understand 
probably doesn't have any spotted owls within it and suddenly 
say, ``Well, someday it might,'' is a bit of a stretch.
    And I really appreciate all of the members of this panel's 
testimony, and I appreciate your traveling here. With that, I 
am concluded on my questions. And thank you, gentlemen, for 
your participation. And now we are going to go to the next 
panel. So, if you gentlemen will vacate those chairs, we will 
bring the next panel up.
    [Pause.]
    Mr. Bentz. Thank you for your patience. I will now 
recognize the third panel for today.
    Mr. Sam Rauch, Deputy Assistant Administrator for 
Regulatory Programs at National Marine Fisheries Service; Mr. 
Norm Semanko, General Counsel for the Family Farm Alliance; Dr. 
Michael Moore, Senior Scientist at the Woods Hole Oceanographic 
Institution; Mr. Curt Brown, a Marine Biologist from Ready 
Seafood; and Ms. Ginny Olsen, Political Director for the Maine 
Lobstering Union.
    Let me remind the witnesses that, under Committee Rules, 
they must limit their oral statements to 5 minutes, but their 
entire statement will appear in the hearing record.
    To begin your testimony, please press the ``on'' button on 
the microphone.
    We use timing lights. When you begin, the light will turn 
green. At the end of 5 minutes, the light will turn red, and I 
will ask you to please complete your statement.
    I will also allow all witnesses to testify before Member 
questioning.
    I now recognize Mr. Rauch for 5 minutes.
    Mr. Rauch.

  STATEMENT OF SAM RAUCH, DEPUTY ASSISTANT ADMINISTRATOR FOR 
REGULATORY PROGRAMS, NATIONAL MARINE FISHERIES SERVICE, SILVER 
                        SPRING, MARYLAND

    Mr. Rauch. Chairman Bentz, Ranking Member Huffman, and 
members of the Subcommittee, thank you for the opportunity to 
testify today. My name is Sam Rauch, and I am the NOAA 
Fisheries Deputy Assistant Administrator for Regulatory 
Programs.
    NOAA Fisheries is responsible for the stewardship of the 
nation's living marine resources and their habitat. Together, 
with the U.S. Fish and Wildlife Service, we work to implement 
the Marine Mammal Protection Act and the Endangered Species Act 
to recover marine and anadromous species while facilitating 
economic and recreational opportunities.
    Under the ESA, critical habitat designations identify areas 
and habitat features that are essential for the conservation 
and recovery of listed species. The statute sets forth criteria 
for determining which areas may be designated as critical 
habitat, including relevant impacts and economic and national 
security considerations.
    In June 2022, NOAA Fisheries and the U.S. Fish and Wildlife 
Service jointly rescinded a 2020 final rule which established 
regulatory definition of ``habitat'' specific to designating 
critical habitat under the ESA. This action followed a 
transparent rulemaking process, including a public comment 
period and consideration of all comments received. In our 
analysis, we found that codifying a single definition of 
``habitat'' could impede the Service's ability to designate 
critical habitat for a species, even with the best available 
science. Rescinding the 2020 final rule also allows the 
Services to better protect habitat for listed species and 
support their recovery under the ESA.
    Therefore, the Administration opposes House Joint 
Resolution 46.
    North Atlantic right whales are approaching extinction, 
with a recent population estimate of fewer than 350 individuals 
and less than 100 reproductively active females. The whales 
have altered their distribution patterns, likely in response to 
changes in prey location and availability due to warming 
oceans. This is resulting in more vessel strikes and 
entanglements in fishing gear, putting this species at even 
greater risk.
    In September 2021, NOAA fisheries issued a final rule that 
modified regulations for the northeast lobster and Jonah crab 
fisheries to ensure that fishing-related mortality complied 
with the ESA and the Marine Mammal Protection Act, the MMPA. 
This rule required modifications to gear markings and 
configurations, weak insertions or roped-in buoy lines, and 
modifications to existing and new seasonally restricted areas.
    This rulemaking also allows ropeless fishing in areas with 
appropriate exemptions. Aspects of this 2021 rule were 
challenged in several district court cases, and most notably 
the D.C. Federal District Court found that the rule had not 
fully complied with the MMPA, and ordered a new rulemaking that 
could be completed by 2024.
    Subsequently, the 2023 Consolidated Appropriations Act 
deemed the 2021 final rule sufficient for authorizing the 
American lobster and Jonah crab fisheries under the MMPA and 
the ESA without further regulatory action required until 
December 31, 2028, among other things.
    NOAA Fisheries is committed to pursuing holistic approaches 
to fulfill our legal responsibility to protect North Atlantic 
right whales. The North Atlantic Right Whale Road to Recovery 
describes all of NOAA Fisheries' efforts to halt the current 
population decline and recover this endangered species.
    Funds appropriated for North Atlantic right whale research 
will be used to inform our understanding of their distribution, 
habitat use, health, and other factors that will improve the 
models used to describe, predict, and analyze the changing risk 
landscape.
    Funds will also be used to accelerate ongoing gear 
research, including the development of ropeless technology. 
Ropeless fishing technology may not be ready for broad-scale 
commercial use before 2028, but NOAA is working hard to pilot, 
accelerate, and support the availability and use of on-demand 
gear.
    We also continue to work closely with the states' fishery 
management councils and the Atlantic States Marine Fisheries 
Commission on implementation challenges.
    We look forward to working with this Committee to further 
North Atlantic right whale conservation, while also supporting 
healthy U.S. commercial fisheries. We appreciate the 
Committee's interest in protecting and sustaining the nation's 
marine fisheries and protected species. NOAA stands ready to 
work with the Congress to address the current and future 
challenges to our marine ecosystems.
    Thank you, and I look forward to discussing these bills 
more with you today.

    [The prepared statement of Mr. Rauch follows:]
Prepared Statement of Samuel Rauch, Deputy Assistant Administrator for 
    Regulatory Programs, National Marine Fisheries Service, National
  Oceanic and Atmospheric Administration, U.S. Department of Commerce
                     on H.J. Res. 46 and H.R. 1213

    Chairman Bentz, Ranking Member Huffman, and members of the 
Subcommittee, thank you for the opportunity to testify before you today 
and to discuss House Joint Resolution 46 and H.R. 1213. The National 
Oceanic and Atmospheric Administration (NOAA) is responsible for the 
stewardship of the nation's living marine resources and their habitat. 
NOAA Fisheries provide vital services for the nation: sustainable and 
productive fisheries, safe sources of seafood, the recovery and 
conservation of protected species, and healthy ecosystems--all backed 
by sound science and an ecosystem-based approach to management. The 
resilience of our marine ecosystems and coastal communities depends on 
healthy marine species, including protected species such as whales, sea 
turtles, salmon, and corals. Under the Marine Mammal Protection Act 
(MMPA) and the Endangered Species Act (ESA), NOAA Fisheries works to 
recover protected marine and anadromous species while facilitating 
economic and recreational opportunities. NOAA Fisheries shares 
responsibility with the U.S. Fish and Wildlife Service for implementing 
the ESA and MMPA. Under the ESA, there are more than 150 endangered and 
threatened marine and anadromous species that are under NOAA's 
jurisdiction, as well as more than 250 marine mammal stocks under the 
MMPA. Our work includes: listing species under the ESA, monitoring 
species status, designating critical habitat, recovering endangered and 
threatened species, conserving marine mammals, developing ESA and MMPA 
policies, guidance, and regulations, and working with partners to 
conserve and recover listed species as well as conserve non-listed 
marine mammals. We offer the following comments on the bills under 
consideration today and look forward to discussing our views with the 
Subcommittee.
House Joint Resolution 46:

    The ESA is extraordinarily effective at preventing species from 
going extinct. It has inspired voluntary action to conserve at-risk 
species and their habitat before they reach the point where they would 
qualify to be listed as threatened or endangered. Since it was signed 
into law in 1973, more than 99 percent of the species listed under the 
law still exist today.
    In June 2022, NOAA Fisheries and the U.S. Fish and Wildlife Service 
(the Services) rescinded a final rule, relating to ``Endangered and 
Threatened Wildlife and Plants; Regulations for Listing Endangered and 
Threatened Species and Designating Critical Habitat, published in 
December 2020. This rule established a regulatory definition of 
``habitat'' specific to the context of designating critical habitat 
under the ESA. The rescission of the final rule went into effect on 
July 25, 2022. This action allowed the Services to better fulfill the 
conservation purposes of the ESA. The decision followed Executive Order 
13990, which directed all federal agencies to review and address agency 
actions to ensure consistency with Administration objectives. The 
Services concluded that codifying a single definition of ``habitat'' 
could impede our ability to designate critical habitat for each species 
based upon the best available science for that particular species.
    Critical habitat designations identify those areas and habitat 
features that are essential for the conservation and recovery of listed 
species. The statute sets forth criteria for determining which areas 
may be designated as critical habitat, which can include areas where 
the species was found at the time of listing, as well as areas that the 
species does not currently occupy. Prior to any designation, the 
Secretary considers the economic, national security, and other relevant 
impacts of designating particular areas. Federal agencies must ensure 
that actions they fund, permit, or conduct are not likely to destroy or 
adversely modify designated critical habitats. Critical habitat 
requirements do not apply to actions on private lands unless those 
actions involve the authorization or funding of a federal agency. The 
ESA recognizes that areas that are either occupied or unoccupied by the 
species may be needed for recovery and authorizes their designation as 
critical habitat so long as the statutory criteria are met.
    The June 2022 final rule improves and strengthens implementation of 
the ESA as it rescinded a definition of ``habitat'' that was unclear, 
confusing, and inconsistent with the conservation purposes of the ESA. 
The previous ``habitat'' definition rule prevented the agencies from 
designating areas that did not currently meet a species' needs, even if 
the area could support the listed species in the future due to natural 
processes or reasonable restoration. Most species face extinction 
because of habitat degradation and loss. It is more consistent with the 
purposes of the ESA for us to designate critical habitat in a manner 
that protects listed species' habitats and supports their recovery. The 
June 2022 action followed a transparent rulemaking process, including a 
public comment period and consideration of all comments received. As 
such, the Administration opposes House Joint Resolution 46, which would 
provide for Congressional disapproval of the June 2022 rule.
H.R. 1213--RESCUE Whales Act of 2023:

    The North Atlantic Right Whale ``Road to Recovery'' describes all 
of NOAA Fisheries' efforts to halt the current population decline and 
recover this endangered species. It is built on the foundation of the 
statutory requirements that we are charged with implementing under the 
ESA and the MMPA. It shows how our collective actions, in collaboration 
with partners, fit together to save this iconic species. For endangered 
North Atlantic right whales to recover, we must address existing and 
emerging threats to the species. Reducing fishing gear entanglements is 
one of the three objectives identified as critical to North Atlantic 
right whale recovery, along with addressing vessel strikes and the 
potential and emerging threats, including impacts from climate change, 
new and expanded ocean uses, and ocean noise.
    In order to address the impacts of fishing on North Atlantic right 
whales pursuant to the MMPA, NOAA Fisheries has convened an Atlantic 
Large Whale Take Reduction team, whose 60 representatives include the 
states, environmental groups, fishermen, and other stakeholders. Based 
on the efforts of that team over the years, NOAA Fisheries created an 
Atlantic Large Whale Take Reduction Plan (ALWTRP) in 1997. After notice 
and comment rulemaking, NOAA Fisheries issued a final rule on September 
17, 2021 to implement amendments to that Plan to ensure that fishing-
related mortality complied with the ESA and fell below the potential 
biological removal (PBR) levels as required by the MMPA. The PBR level 
is defined by the MMPA as the maximum number of animals, not including 
natural mortalities, that may be removed from a marine mammal stock 
while allowing that stock to reach or maintain its optimum sustainable 
population.
    The 2021 rule modified regulations for the northeast lobster and 
Jonah crab trap/pot fisheries by modifying gear marking to introduce 
state-specific colors for gear marks and increase the number of gear 
markings and areas requiring marked lines. The rule also modifies gear 
configurations to reduce the number of vertical lines by requiring more 
traps between buoy lines, requiring weak insertions or weak rope in 
buoy lines, modifying existing seasonally restricted areas to allow 
ropeless fishing, and adding two new seasonally restricted areas. The 
rule also follows changes made by Massachusetts, which extended the 
Massachusetts Restricted Area to add state waters north to the New 
Hampshire border. This rulemaking also allows (but does not require) 
``ropeless'' fishing in seasonally restricted areas with appropriate 
exemptions from existing surface marking requirements in the fishery 
regulations. That rule is currently in place.
    Aspects of the 2021 rule were challenged in separate court cases, 
with the Federal District Court in the District of Columbia finding 
that the rule had not fully complied with the MMPA and ordering a new 
rulemaking to be completed by 2024.
    The Consolidated Appropriations Act for Fiscal Year 2022 (CAA) 
included a mandate that, with limited exceptions, the 2021 ALWTRP 
amendments ``shall be deemed sufficient to ensure that the continued 
Federal and State authorizations of the American lobster and Jonah crab 
fisheries are in full compliance'' with the ESA and MMPA until December 
31, 2028. The CAA also prescribes and provides increased appropriations 
that support further development and adoption of innovative fishing 
gear technologies, monitoring in the Gulf of Maine, and for other 
purposes. The CAA also directed the agency to provide annual status 
reports to Congress on ``actions taken and plans to implement 
measures'' to bring fishery interactions with North Atlantic right 
whales below the PBR level by December 31, 2028.
    Reducing North Atlantic right whale mortalities and serious 
injuries below the PBR level will require a broad suite of management 
measures implemented in both the federal and state waters that will be 
informed by the best scientific information reasonably available at the 
time of rulemaking. This suite could include: (1) continuation of 
existing measures contained in the 2021 Rule; (2) broad buoy line 
reductions achieved through trap allocation reductions or use of a 
single vertical buoy on lobster trawls; (3) targeted large scale buoy 
line closures where gear is entirely removed from the water and brought 
to shore for extended periods as opposed to being redeployed elsewhere 
or through widespread use of ropeless fishing (also called on-demand 
fishing); and (4) expanded use of weak rope or weak links.
    Broad commercial scale implementation of ropeless (also known as 
``on-demand'') fishing gear would reduce the impacts of large closures 
on industry. Unlike traditional fishing methods, the vertical buoy 
lines for ropeless fishing are either safely contained within the 
fishing gear itself until the time when the fishing vessel wants to 
haul the gear from the ocean, or the system is retrieved by triggering 
an inflation bag that brings the gear to the surface. In either case, 
ropeless fishing technology substantially reduces the risk of North 
Atlantic right whale mortality and serious injury by eliminating the 
need for vertical buoy lines while the gear fishes on the ocean floor. 
Although ropeless fishing technology is currently under development, it 
may not be ready for broad-scale commercial use before 2028. NOAA is 
working hard to pilot, accelerate, and support the availability and use 
of on demand gear.
    Funds appropriated for North Atlantic right whale research under 
the CAA will be used to inform our understanding of North Atlantic 
right whale distribution, habitat use, health, threats, and other 
factors that will improve the models used to describe, predict, and 
analyze the changing risk landscape facing the North Atlantic right 
whale. Funds will also be used to accelerate ongoing gear research, 
including the development of ropeless technology. This requires that we 
work closely with the States, Fishery Management Councils, and the 
Atlantic States Marine Fisheries Commission, in consultation with 
fishing industry participants and others, on implementation challenges 
such as modifying surface marking requirements to include advanced 
geolocation methods or other cutting-edge bottom gear marking 
techniques that can work as well as buoy lines to prevent gear 
conflicts. Using these funds effectively, NOAA and the fishing industry 
may have new tools available to develop targeted regulations that 
effectively recover the North Atlantic right whale population while 
also supporting healthy U.S. commercial fisheries.

Conclusion

    NOAA is proud to continue to lead the world in conducting ocean 
science, serving the nation's coastal communities and industries, and 
ensuring responsible stewardship of our ocean and coastal resources. We 
value the opportunity to continue working with this Subcommittee on 
these important issues. Thank you, Members of the Subcommittee and your 
staff for your work to support NOAA's mission. I am happy to take your 
questions.

                                 ______
                                 

    Questions Submitted for the Record to Mr. Samuel Rauch, Deputy 
 Assistant Administrator for Regulatory Programs, National Oceanic and 
                       Atmospheric Administration

Mr. Rauch did not submit responses to the Committee by the appropriate 
deadline for inclusion in the printed record.

              Questions Submitted by Representative Bentz

    Question 1. What is the timeline for NOAA to release a final rule 
of 87 FR 46921, Amendments to the North Atlantic Right Whale Vessel 
Strike Reduction Rule?

    Question 2. Many of the flaws with this rule could have been 
avoided if NOAA had consulted with relevant stakeholders on the front 
end. What steps is NOAA taking to improve its stakeholder engagement 
strategy on marine mammal interactions and related issues, to ensure 
the best available information is taken into account?

    Question 3. NOAA is sorting through many public comments, will you 
commit to taking stakeholder input as you work to finalize this rule?

    Question 4. NOAA has stated that the 2008 vessel speed restrictions 
had a significant impact on reducing vessel strikes. Yet, NOAA also 
acknowledges that compliance with the existing rules is very low (up to 
90% non-compliance in some areas). Meaning that even with poor 
compliance, the 2008 rules had a significant benefit in reducing vessel 
strikes. Why has NOAA chosen not to focus on improving compliance with 
the existing rules? What would be the anticipated risk reduction 
specific to vessel strikes if compliance with the existing rules 
doubled?

    Question 5. With respect to the Proposed Rule, NOAA asserts that 
the ``proposed revisions to the current speed rule [will have] an 
estimated cost at just $46 million per year.'' Is OIRA reviewing the 
rule under Executive Order 12866? If not, why?

    Question 6. NOAA based its cost estimate by stating that 15,899 
vessels in the 35-65 feet range would be impacted by the proposed rule. 
Using 2021 vessel registration data, there closer to 63,000 vessels 35-
65 feet that would be impacted by the proposed rule. Is NOAA going to 
revise its cost estimate and coordinate with OIRA for review under 
Executive Order 12866?

                                 ______
                                 

    Mr. Bentz. Thank you. I now recognize Mr. Semanko for 5 
minutes.

   STATEMENT OF NORMAN SEMANKO, GENERAL COUNSEL, FAMILY FARM 
                     ALLIANCE, BOISE, IDAHO

    Mr. Semanko. Thank you, Chairman Bentz, Ranking Member 
Huffman, and members of the Subcommittee. Thank you for this 
opportunity to share observations on House Joint Resolution 46.
    Today, I am representing the Family Farm Alliance, a grass 
roots organization of family farmers, ranchers, irrigation 
districts, and allied industries in 16 Western states. We are 
committed to the fundamental proposition that Western-irrigated 
agriculture must be preserved and protected for a host of 
economic, sociological, environmental, and national security 
reasons. The American food consumer nationwide has access to 
affordable fruits, vegetables, nuts, grains, and beef 
throughout the year, largely because of Western-irrigated 
agriculture and the projects that provide water to these 
farmers and ranchers.
    The latest critical habitat rule was finalized in June 
2022, essentially rescinding an earlier rule finalized by the 
previous administration in 2020. The Family Farm Alliance 
strongly supports House Joint Resolution 46, which formally 
disapproves of the June 2022 rule.
    Implementation of the ESA, including the Services' 
designation of critical habitat, impacts the management of land 
and water throughout the West. There is no getting around that. 
Given the nature of water storage and delivery, Alliance 
members are often directly impacted. The Family Farm Alliance 
strongly supported the substance and the process used to 
finalize the 2020 rules that have now been rescinded by the 
Biden administration, including the rule for designating 
critical habitat.
    The Services claim that the 2020 rule's definition of 
habitat was unclear, confusing, and inconsistent with the 
conservation purposes of the ESA. We beg to differ. Several 
issues positively addressed by the 2020 rule have now been cast 
back into the world of uncertainty and increased regulation by 
the repeal. I would like to highlight two of these issues.
    First is the inclusion of man-made facilities in critical 
habitat determinations, including reservoirs, canals, and 
ditches. Consider the critical habitat designated for the 
Oregon spotted frog in the Deschutes River Basin. Local 
irrigation districts and municipalities submitted detailed 
comments and arguments in opposition to the proposal to include 
reservoirs as critical habitat for the frog. As is often the 
case, the arguments made by the water users fell on deaf ears. 
In the final critical habitat designation, the reservoirs were, 
in fact, included as critical habitat for the spotted frog. 
Also included were areas and river stretches that could support 
the frog, even though there was no evidence that the frog 
existed in those locations.
    Under the 2020 rule, these features would not have 
qualified as critical habitat, a designation that can cause 
significant economic impacts when existing water delivery and 
storage operations are affected. That is now gone as a result 
of the current Administration's repeal of the 2020 rule.
    The second issue relates to designating unoccupied areas as 
critical habitat. During the previous administration, the 
Services proposed restoring the requirement that the Secretary 
first evaluate areas occupied by species. This change could be 
particularly helpful in determining the range of ESA-listed 
smelt in California's Sacramento-San Joaquin River Delta 
estuary.
    Currently, there is a dispute among some as to how close 
the smelt get to the Delta's Central Valley project pumps as 
part of their habitat. And due to turbidity requirements and a 
lack of clarity over how far the smelt live away from the 
pumps, the pumping levels are often limited to the detriment of 
CVP irrigators who rely on those water supplies.
    This could also help to prevent the recurrence in other 
areas of what happened in Idaho, where the Service proposed to 
designate several areas in the Boise and Payette River Basins 
as critical habitat for bull trout, even though the areas were 
uninhabited. Idaho water users submitted comments opposing that 
proposal. Ultimately, however, the uninhabited area was 
designated as critical habitat.
    The 2020 rule would provide a higher threshold for such a 
designation. That, too, is now gone due to the 2022 repeal. The 
2020 rule was intended to provide greater transparency and 
certainty regarding its critical habitat exclusions. Given the 
Supreme Court holding in Weyerhaeuser v. Fish and Wildlife 
Service in 2018, the decisions not to exclude an area from 
critical habitat are judicially reviewable. It was troubling to 
see the Services so quickly flip flop and find that the 2020 
final rule is problematic because it unduly constrained the 
Services' discretion in administering the ESA.
    Based on its evaluation, the Services proposed to rescind 
the 2020 rule. In doing so, they failed to provide the 
requisite reasoned explanation for rescinding the 2020 final 
rule. The 2020 final rule provided the necessary regulatory 
framework to guide the consideration of exclusions for critical 
habitat.
    In conclusion, we urge the Subcommittee to support House 
Joint Resolution 46, which would restore the 2020 final rule, 
which is intended to better ensure that agency actions are 
clear and consistent, and provide the maximum degree of 
regulatory predictability to those who are affected by it, like 
Western farmers and ranchers.
    Thank you for the opportunity to testify. I stand ready to 
answer any questions you may have.

    [The prepared statement of Mr. Semanko follows:]
 Prepared Statement of Mr. Norm Semanko, General Counsel, Family Farm 
                                Alliance
                            on H.J. Res. 46

    Chairman Bentz, Ranking Member Huffman and Members of the 
Committee: Thank you for this opportunity to share observations with 
you on H.J. Res. 46, which proposes congressional disapproval of the 
rule submitted by the Biden Administration National Marine Fisheries 
Service (NMFS) relating to ``Endangered and Threatened Wildlife and 
Plants; Regulations for Listing Endangered and Threatened Species and 
Designated Habitat''.
    Today, I am representing the Family Farm Alliance (Alliance), a 
grassroots organization of family farmers, ranchers, irrigation 
districts, and allied industries in 16 Western states. We are committed 
to the fundamental proposition that Western irrigated agriculture must 
be preserved and protected for a host of economic, sociological, 
environmental and national security reasons--many of which are often 
overlooked in the context of other national policy decisions. The 
American food consumer nationwide has access to affordable fruits, 
vegetables, nuts, grains and beef throughout the year largely because 
of Western irrigated agriculture and the projects that provide water to 
these farmers and ranchers.
    The latest critical habitat rule was finalized in June 2022, 
essentially rescinding an earlier rule finalized by the previous 
Administration in 2020. The Alliance strongly supported the 2020 Final 
Rule promulgated in the Trump Administration and believed that rule's 
critical habitat exclusion procedures were necessary to provide greater 
transparency and certainty for the public and stakeholders. We believe 
the Biden Administration failed to provide the requisite reasoned 
explanation for rescinding the 2020 Final Rule and each of the primary 
substantive provisions of that rule, and we provided detailed formal 
comments to the U.S. Fish and Wildlife Service (FWS) and NMFS toward 
that end.
    The Family Farm Alliance supports H.J. Res. 46, which formally 
disapproves of the June 2022 rule and legislates that the rule shall 
have no force or effect.

                          PERSONAL BACKGROUND

    I serve as the General Counsel of the Alliance, as part of my 
duties as Office Managing Shareholder of Parsons, Behle and Latimer's 
office in Boise, Idaho, where I'm the firm's water law practice group 
leader in the Pacific Northwest Region. I have more than 30 years of 
experience with water resources, environmental, natural resources, land 
use, public lands and regulatory issues.
    I also currently serve as vice chairman of the Litigation Review 
Committee for the National Water Resources Association (NWRA), and I'm 
a member of the Litigation Advisory Committee for the Mountain State 
Legal Foundation. I've served as a past president of NWRA and was 
previously chairman of NWRA's Federal Affairs Committee. I'm also a 
former member of the Western States Water Council and the Columbia 
Basin Partnership Task Force.
    I'm pleased to be on the witness dais before you today. I have 
represented many clients in litigation in federal courts, on issues 
like the National Environmental Policy Act (NEPA), the Administrative 
Procedure Act, and the National Forest Management Act. I'm looking 
forward to sharing my experience dealing with the Endangered Species 
Act (ESA) and other issues involving salmon and steelhead over the past 
several decades in the Pacific Northwest.

                 ESA IMPLEMENTATION IN THE WESTERN U.S.

    The federal government's significant presence in the West presents 
unique challenges for Alliance members. This is particularly true with 
respect to the reach of the ESA. Implementation of the ESA impacts the 
management of land and water throughout the West. For example, federal 
water supplies that were originally developed by the Bureau of 
Reclamation (Reclamation) primarily to support new irrigation projects 
have, in recent years, been targeted and redirected to other uses. The 
result is that these once-certain water supplies--one of the few 
certainties in Western irrigated agriculture--have now been added to 
the long list of existing ``uncertainties,'' negatively impacting the 
ability of these Western farms and ranches to grow food for this Nation 
and the world.
    Given the nature of water storage and delivery, Alliance members 
are often directly impacted by the implementation of the ESA and other 
federal laws. A constant frustration our members experience is the lack 
of accountability for success or failure from the implementation of 
these federal laws. There is no empirical measure of the success or 
failure of mitigation measures (including reasonable and prudent 
alternatives) or the subsequent adjustment of those measures as a 
result. The ESA has at times been interpreted to empower federal 
agencies to take action intended to protect listed species without 
consideration of the societal costs of such action, even when it is not 
clear that the action taken will actually yield conservation benefits 
for the particular species. Thus, the Alliance strongly supports 
efforts to reform the ESA and its implementing regulations to provide 
clearer direction to the agencies in applying and enforcing the law.

         ALLIANCE ENGAGEMENT ON CRITICAL HABITAT IMPLEMENTATION

    The Family Farm Alliance strongly supported the substance and 
process used to finalize the 2020 ESA rules that have now been 
rescinded by the Biden Administration, including the rule for 
designating critical habitat. The Alliance in 2018 convened a team of 
resources, law, and policy experts familiar with Western water resource 
management and how this important function is impacted by 
implementation of federal laws and regulations. Our team developed a 
20-page set of recommendations for NMFS and FWS--collectively, the 
``Services''--as those agencies considered proposed revisions to 
regulations that 1) implement section 7 of the ESA; 2) extend most of 
the prohibitions for activities involving endangered species to 
threatened species; and 3) implement section 4 of the ESA.
    During multiple meetings, our team identified several issues for 
the Services to consider, with the intent to clarify, interpret, and 
implement portions of the ESA concerning the procedures and criteria 
used for designating critical habitat. These issues are briefly 
summarized below.
Economic Impacts

    The Services in 2018 proposed removing the phrase ``without 
reference to possible economic or other impacts of such 
determination.'' Although the listing decisions must be made based 
``solely on the basis of the best scientific and commercial data 
available,'' the ESA does not prohibit the presentation of information 
on economic and other impacts to the public. We felt removing this 
phrase was a positive change. In the past, the agencies have conflated 
the listing decision (which does not consider economic impacts) and 
other ESA-related decisions (which may consider economic impacts). The 
agencies would reject economic impact considerations in the latter 
category, concluding that all economic impacts were accounted for in 
the listing decision. This is a frustrating and disingenuous treatment 
of the processes.
Not Prudent Determinations for Critical Habitat

    The Services in the previous Administration proposed adding 
additional circumstances where critical habitat areas under the 
jurisdiction of the United States provide negligible conservation value 
for a species that primarily occurs in areas outside of U.S. 
jurisdiction. We supported this proposal.
Including Man-made Facilities in Critical Habitat Determinations

    Another issue that must be resolved and which has created 
difficulties for some of our members in the past is when critical 
habitat is designated for man-made structures like reservoirs, canals 
and ditches.
    Consider the critical habitat designated for the Oregon spotted 
frog in the Deschutes River Basin. Local irrigation districts and 
municipalities submitted detailed comments and arguments in opposition 
to USFWS's proposal to include Wickiup and Crane Prairie reservoirs as 
critical habitat for the frog. Although the proposed designation 
excluded ``developed areas such as lands covered by buildings, 
pavement, and other structures'' from critical habitat boundaries, it 
did not exclude existing reservoir operations. Local water users argued 
at the time of the proposed listing that the ``primary constituent 
elements'' (PCEs) for the frog could only be provided in some portions 
of the Upper Deschutes by modifying existing reservoir operations. This 
is no different from saying the PCEs in a developed area can only be 
restored by removing the development.
    As is often the case, the arguments made by the water users pretty 
much fell on deaf ears when it came to the final critical habitat 
designation. In their final critical habitat designation, USFWS 
included Wickiup and Crane Prairie reservoirs as critical habitat for 
the spotted frog. They also included areas and river stretches that 
``could'' support the frog, even though there was no evidence that the 
frog existed in those locations.
    Under the Trump rule, these features would not have qualified as 
critical habitat, a designation that can cause significant economic 
impacts when existing water delivery operations are affected. For 
example, reducing the availability of summertime irrigation water from 
the Deschutes Basin reservoirs causes: 1) Reduced agricultural income 
and productivity; 2) Reduced value of in-conduit hydropower generation; 
and 3) Aesthetic, recreation, and lifestyle costs. In addition to these 
economic costs, there are also potential distributional costs of 
reduced water availability. These costs include: 1) Ripple effects on 
the local economy of reduced agricultural and hydropower production; 
and 2) Reduced county property tax revenues.
    We need a rule that explicitly provides that critical habitat 
designations cannot include reservoirs, canals, ditches and other man-
made structures as critical habitat.
Designating Unoccupied Areas

    The Services in 2018 proposed restoring the requirement that the 
Secretary will first evaluate areas occupied by the species. Under the 
proposed amendments, the Services could only consider unoccupied areas 
as critical habitat if occupied areas would (1) be inadequate to ensure 
the conservation of the species, or (2) result in less-efficient 
conservation for the species. Further, the Secretary must determine 
that there is a reasonable likelihood that the unoccupied area will 
contribute to the conservation of the species. The Alliance supported 
this change.
    As an example, this change could be particularly helpful in 
determining the range of ESA-listed smelt in California's Sacramento-
San Joaquin River Delta estuary (Delta). Currently, there is a dispute 
among some as to how close the smelt get to the Delta's Central Valley 
Project (CVP) pumps as part of their habitat, and due to turbidity 
requirements and a lack of clarity over how far the smelt live away 
from the pumps, the pumping levels are often limited, to the detriment 
of CVP irrigators who rely on those water supplies.
    This could also help to prevent the recurrence in other areas of 
what happened in Idaho in 2010. That year, the Service proposed to 
designate several areas in the Boise and Payette River Basins as 
critical habitat for Bull Trout, even though the areas in the Payette 
were uninhabited. Idaho water users submitted comments opposing that 
proposal. Ultimately, however, the uninhabited area was designated as 
critical habitat. To date, Idaho water users are unaware of any Bull 
Trout identified in these designated uninhabited areas.
    While it cannot be conclusively stated that anything ``bad'' has 
necessarily happened because of that designation (to date), the 
designation opens up this uninhabited area for potential issues should 
some litigious activist group decide to raise the matter. The 
designation has also opened these areas to a new, and different, world 
of administrative regulation and potential issues. This is unnecessary 
given that the area remains uninhabited.
    Even though we cannot conclude that areas in the Payette River 
Basin would not have been designated under the 2018 proposed rule, we 
felt this new proposal would provide a higher threshold for such a 
designation--a good thing for the regulated community.

             OVERVIEW OF AGENCY ACTION ON CRITICAL HABITAT

    FWS and NMFS rescinded the Trump Administration's 2020 rule that 
clarified the process for designating critical habitat for threatened 
and endangered species under Section 4 of the ESA. As further explained 
below, the Alliance opposed the Proposed Recission, which occurred less 
than a year after the agencies promulgated the 2020 regulations. That 
earlier effort was intended to provide ``greater transparency and 
certainty for the public and stakeholders'' regarding its critical 
habitat exclusion process, given the preceding Supreme Court holding in 
Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018) (Weyerhaeuser) that 
decisions not to exclude an area from critical habitat are judicially 
reviewable. It was troubling to see NMFS and FWS so quickly flip-flop 
and find that the 2020 Final Rule is ``problematic because it unduly 
constrained the Service's discretion in administering the [ESA].''
1. Background

    On February 11, 2016, the Services issued a joint policy describing 
how they implement the authority to exclude areas from critical habitat 
designations. On December 18, 2020, the FWS amended its portions of 
their regulations that implement section 4 of the ESA. The final 
regulation applied solely to critical habitat designated by FWS. The 
Final Rule set forth a process for implementing section 4(b)(2) of the 
ESA, which requires FWS to consider the impacts of designating critical 
habitat and allows the agency to exclude particular areas following a 
discretionary exclusion analysis subject to certain limitations. That 
rule provided the background for proposed revisions in terms of the 
statute, legislative history, and case law.
    Section 4(b)(2) of the Act requires that the Service consider the 
economic impact, the impact on national security, and any other 
relevant impacts of designating any particular areas as critical 
habitat. It provides that FWS then may engage in further discretionary 
consideration and exclude particular areas from the designation if the 
benefits of exclusion outweigh the benefits of inclusion and exclusion 
would not result in extinction of the species. In the Final Rule, FWS 
discussed its desire to articulate clearly when and how it will 
undertake such an exclusion analysis under section 4(b)(2), including 
identifying a non-exhaustive list of categories of potential impacts 
for the Service to consider. The goal for the Final Rule was to 
clarify, based on agency experience, how FWS considers impacts caused 
by critical habitat designations and conducts its discretionary 
exclusion analyses, partially in light of the Supreme Court's recent 
decision in Weyerhaeuser.
    On January 20, 2021--the day of his inauguration--President Biden 
issued Executive Order 13990, which, among other things, required all 
agencies to review agency actions issued between January 20, 2017, and 
January 20, 2021 to determine consistency with the purposes articulated 
in section 1 of the E.O. A ``Fact Sheet'' supporting the E.O. set forth 
a non-exhaustive list of specific agency actions that agencies were 
required to review. One of the agency actions included on the Fact 
Sheet was the December 18, 2020 Final Rule. Pursuant to the direction 
in EO 13990, FWS reviewed the December 18, 2020 Final Rule to assess 
whether to keep the rule in place or to revise any aspects of it. The 
agency's review included evaluating the benefits or drawbacks of the 
rule, the necessity of the rule, its consistency with applicable case 
law, its inconsistency with NMFS's process for applying section 4(b)(2) 
of the Act, and other factors. Based on its evaluation, FWS proposed to 
rescind the 2020 Final Rule.
2. Alliance Response and Recommendations
    Congress included Section 4(b)(2) in the ESA to provide a mechanism 
to exclude particular areas from critical habitat, after consideration 
of the economic and other impacts of the designation, when the benefits 
of exclusion outweigh the benefits of inclusion, and exclusion of that 
area would not result in extinction of the species. In practice, the 
evaluation of critical habitat exclusions has been complicated due to a 
lack of transparency and consistent standards describing how the 
Services would assign weight to particular impacts, weigh the 
respective benefits of inclusion versus exclusion, and ultimately 
exercise their discretion regarding the exclusion of a particular area.
    The Family Farm Alliance in October 2020 formally responded to the 
revisions proposed by FWS relative to regulations for designating 
critical habitat, under Section 4(b)(2) of the ESA. We generally 
supported FWS's revisions to clarify the scope of economic and other 
impacts that would be considered; to assign weight to impacts and 
benefits based on the expertise of the exclusion proponent and the 
recognition that nonbiological impacts are outside of FWS's expertise; 
and to always exclude an area when the benefits of exclusion outweigh 
the benefits of inclusion, unless extinction of the species would 
result.
    The Alliance has long supported efforts to balance effective, 
science-based conservation with common-sense policy designed to bring 
the ESA into the 21st century. We felt the 2020 Final Rule was a strong 
step in this direction.

    Conversely, we did not believe that transparency and regulatory 
certainty were promoted by FWS's latest proposal to rescind the 
regulations. Our belief was built upon the following observation and 
recommendations, which are more fully detailed in the November 2021 
letter submitted to the Services by the National Endangered Species Act 
Reform Coalition (NESARC) on this matter: \1\
---------------------------------------------------------------------------
    \1\ We supported that letter and incorporated it by reference into 
our comments to the Services.

  1.  The Critical Habitat Exclusion Procedures in the 2020 Final Rule 
            Are Necessary to Provide Greater Transparency and Certainty 
---------------------------------------------------------------------------
            for the Public and Stakeholders.

  2.  FWS Failed to Provide the Requisite Reasoned Explanation for 
            Rescinding the 2020 Final Rule. While FWS purported to 
            explain the basis for its change in position, the provided 
            explanations were not well reasoned, nor did they 
            meaningfully address the facts and circumstances supporting 
            the recent promulgation of the procedures implanting the 
            Section 4(b)(2) critical habitat exclusion process. The 
            2020 Final Rule did not undermine FWS's role in ESA 
            implementation nor give undue weight to outside parties. 
            The 2020 Final Rule was not overly rigid, but instead, 
            provided the necessary regulatory framework to guide the 
            consideration of exclusions from critical habitat. 
            Reverting to the 2016 policy did not provide clarity or 
            transparency to the critical habitat exclusion process. It 
            defied logic for FWS to assert that clarity and 
            transparency would be improved by reverting back to a 
            policy that had already been found not to achieve those 
            objectives because it did not contain the requisite 
            regulatory framework.

  3.  FWS Failed to Provide a Reasoned Explanation for Rescinding Each 
            of the Primary Substantive Provisions of the 2020 Final 
            Rule.

          a.   The Biden Administration's FWS stated that the 
        ``credible information'' standard was vague and did not 
        accomplish the stated goal of improving transparency about what 
        information would or would not trigger an exclusion analysis. 
        In fact, the explanations provided during the promulgation of 
        the 2020 Final Rule informed us what must be provided by 
        proponents of a critical habitat exclusion.

          b.   In the Proposed Recission, FWS stated that it had found 
        that ``the provision to automatically assign weights based on 
        the nonbiological impacts identified by entities outside the 
        agency does not advance the conservation goals of the Act.'' In 
        this instance, FWS disregarded its explanation in the 2020 
        Final Rule and misstated the scope of its statutory obligations 
        pursuant to ESA Section 4(b)(2). The criteria for assigning 
        weights to impacts do not constrain FWS's authority or 
        responsibility under the ESA.

          c.   The Biden Administration's FWS pointed to the change in 
        treatment of Federal lands as justification for proposing to 
        rescind the 2020 Final Rule. FWS noted that, under the 2016 
        Policy, the Services would generally not exclude Federal lands 
        from a designation of critical habitat and, instead, the 2020 
        Final Rule applied the same standards for evaluating Federal 
        and non-Federal lands. FWS stated that all Federal agencies 
        have responsibilities under ESA section 7 to carry out programs 
        for the conservation of listed species and to ensure that their 
        actions are not likely to jeopardize the continued existence of 
        the species or result in the destruction or adverse 
        modification of critical habitat. Finally, FWS asserted that 
        the 2020 Final Rule ``fails to recognize that the Policy does 
        not prohibit exclusions of Federal lands.'' Unfortunately, the 
        Biden Administration's FWS failed to appreciate that these 
        issues and concerns were already raised and addressed during 
        the promulgation of the 2020 Final Rule. We believe the 
        critical habitat exclusion process applies equally to federal 
        and non-federal lands.

          d.   The Biden Administration's FWS found that the 
        requirement in the 2020 Final Rule that the Secretary ``shall'' 
        exclude an area where the benefits of exclusion outweigh the 
        benefits of inclusion was an ``unnecessarily broad constraint 
        on the Secretary's discretion,'' and one that ``interferes with 
        the statute's conservation goals by making a binding rule that 
        ties the hands of current and future Secretaries in a 
        particular way in all situations.'' Instead of providing 
        transparency and certainty to the regulated community, FWS was 
        now indicating that it was preferable to ``preserve the 
        Secretary's discretion on exclusions regardless of the outcome 
        of the balancing.'' We believe clarifying when FWS will exclude 
        areas from critical habitat is an appropriate exercise of 
        discretion.

          e.   Since promulgation of the 2020 Final Rule, the Biden 
        Administration's FWS determined that the inclusion of certain 
        ``other provisions identifying factors for the Secretary to 
        consider when conducting exclusion analyses that involve 
        particular categories of impacts'' was unnecessary, and that 
        their removal would not affect FWS's implementation of the ESA. 
        FWS's explanation was contrary to the purpose of the 2020 Final 
        Rule, which was to ``provide greater transparency and certainty 
        for the public and stakeholders.'' We believe the ``other'' 
        regulatory provisions of the 2020 Final Rule should be 
        retained.

    In summary, we believe the rationale for the Biden Administration's 
regulatory action was unsupported and contrary to legal precedent.

                               CONCLUSION

    We understand the difficult issues surrounding the ability of 
Congress to amend the ESA. However, Congress has given the agencies 
considerable discretion in how the ESA is implemented as enacted. Given 
the significant scientific uncertainty with many listed species and the 
ecosystems in which they reside and the failure of the ESA regulators 
to look beyond only the federal action being consulted upon to consider 
the many other varied stressors affecting them, the agencies need to 
step back and rethink the consequences of their actions. Even though 
the ESA does not require the human consequences of their decisions to 
be considered, it does not prohibit such consideration. Understanding 
the impacts on people that come with ESA decisions is simply good 
public policy. To ignore how people are affected is simply bad public 
policy. This concern and others deserve further consideration from the 
highest policy officials.
    Farmers, ranchers, and some conservation groups know that the best 
water solutions are unique and come from the local, watershed, and 
state levels. They know we need policies that encourage agricultural 
producers, NGOs, and state and federal agencies to work together in a 
strategic, coordinated fashion. They understand that species recovery 
and economic growth and activity do not have to be mutually exclusive.
    The Family Farm Alliance developed our recommendations for the 
Services to help form the basis for solutions to help meet the 
challenges our farmers and ranchers face. It is our hope that Congress 
and the agencies will embrace the core philosophy previously stated: 
the best solutions are driven locally by real people with a grasp of 
``on-the-ground'' reality and who are heavily invested in the success 
of such solutions.
    We urge the Subcommittee to support H.J. Res. 46, which would 
restore the 2020 Final Rule, which was intended to better ensure that 
agency actions are clear and consistent and provide the maximum degree 
of regulatory predictability to those who are affected by it--like 
Western farmers and ranchers. Western irrigated agriculture is a 
strategic and irreplaceable national resource important to both our 
food security and our economy. It must be appreciated, valued, and 
protected by the federal government in the 21st century.
    Thank you for this opportunity to testify today. I stand ready to 
answer any questions you may have.

                                 ______
                                 

    Mr. Bentz. Thank you. I now recognize Dr. Moore for 5 
minutes.

   STATEMENT OF MICHAEL MOORE, SENIOR SCIENTIST, WOODS HOLE 
      OCEANOGRAPHIC INSTITUTION, WOODS HOLE, MASSACHUSETTS

    Dr. Moore. Chairman Bentz, Ranking Member Huffman, and 
members of the Subcommittee, thank you for inviting me to 
testify.
    I am a senior scientist and veterinarian at WHOI, and have 
studied human impacts on marine mammals for 45 years. I have 
worked recently with engineers and fishermen to develop systems 
to remove lines from the water column that entangle North 
Atlantic right whales.
    The Omnibus Act funds such innovative technology, but it 
suspends conservation measures for North Atlantic right whales 
required under the ESA and MMPA for 6 years. The RESCUE Whales 
Act repealing that suspension is essential for three reasons: 
extinction; we have a solution in hand; and animal welfare.
    So, first, the species is in immediate jeopardy.
    [Slide.]
    Dr. Moore. This first slide--next slide, puts conservation 
suspension in context. Right whales alive versus time.
    The solid blue line shows a doubling in animals from 250 to 
500 by 2010, then declining in U.S. and Canadian waters to 340 
by 2021. Foraging success in a warming ocean and trauma from 
vessel collision and entanglement all affect survival, growth, 
and calving.
    The dashed blue line projects future losses from mean 
annual loss of all whales since 2011. Currently, for every calf 
born, three whales die.
    The solid black line shows the 70 breeding animals alive 
through 2018.
    The dotted black line produces losses from their mean 
annual loss since 2011.
    The black arrow, 2035, no more breeding females, no more 
calves. The species is functionally extinct in 2035.
    Red and green arrows show the omnibus suspension, which 
closes about half of the remaining window of opportunity to 
implement conservation management strategies for ESA and MMPA-
mandated species recovery.
    Now, actual loss rates will vary depending upon 
conservation and innovation measures in the United States and 
Canada and many other factors. This figure simply establishes a 
general time frame, but the value of the suspension repeal to 
allow more timely conservation measures is very clear, given 
what we now know. They came back from a previous low of 250 in 
1990, thanks to less severe entanglement, slower vessels, and 
more robust calving. There is still hope.
    Second, there is an available solution to entanglement. The 
Omnibus Act supports innovative technology to put fishermen 
back to work in otherwise closed areas. Repeal of the 
suspension would enable faster adoption of ropeless or on-
demand systems, removing persistent vertical buoy line from the 
water column using acoustic release of bottom-stowed trap 
recovery gear.
    The next slide, please.
    [Slide.]
    Dr. Moore. These systems have already enabled commercial 
harvest in areas closed to vertical buoy lines in the Gulf of 
Saint Lawrence and the Massachusetts restricted area, which is 
closed to trap fishing since 2015 to support North Atlantic 
right whale conservation.
    While these systems are expensive and need enhanced 
location standards, safety, and affordability, they will 
develop rapidly with omnibus funding. These systems should 
first be used in areas closed for whale conservation, but we 
can't assume that an overall region's entanglement risk is 
defined by reports of past events or lack thereof. For 
instance, this plot shows right whale sightings since 2017 in 
trapped fishing areas, including the northern Gulf of Maine.
    Finally, we also have a persistent, unresolved animal 
welfare crisis. I naively believed that our 2006 paper showing 
that lethally entangled North Atlantic right whales take an 
average of 6 months to die would elicit widespread support for 
fishing systems that avoided entanglement altogether. 
Obviously, it did not.
    Right whales, like all animals, should have an expectation 
of a pain-free life. Entangled marine mammals have a bad time 
of it. Right whales may endure constricting entanglements for 
months. Nobody wants to see this. This discussion is about 
extinction, but it is also about animal welfare. Were there to 
be an industry that left an animal on the streets of this city 
entangled in constrictive rope, with some dying over a 6-month 
period, consumers of that product would demand an alternative 
technology.
    The Omnibus Act has provided the funding potential to 
conserve the species and fisheries, while also substantially 
reducing the extreme pain and suffering as animals currently 
endure. But to succeed, it must be done without a 6-year 
hiatus, one that could well mean the end of the entire species 
while we watch.
    Twenty years ago we published a paper about dead right 
whales, and the need to avoid extinction by controlling 
entanglement and vessel speed. We now have a disastrous 
consequence from decades of economic and political compromise. 
Yet, there is still time. But we need to do it now, not 6 years 
from now. Thank you.

    [The prepared statement of Dr. Moore follows:]
   Prepared Statement of Michael J. Moore, Vet. M.B., Ph.D., Biology 
            Department, Woods Hole Oceanographic Institution
                              on H.R. 1213

    Thank you to Chairman Bentz, and Ranking Member Huffman, for 
inviting me to testify on the RESCUE Whales Act. I am a Senior 
Scientist and Veterinarian at the Woods Hole Oceanographic Institution, 
a past chair of the NOAA Fisheries Working Group for Unusual Marine 
Mammal Mortality Events, and past member of the NOAA Fisheries Atlantic 
Scientific Review Group. These are my own words. My work has focused on 
the diagnosis, effects, and prevention of shipping and fishing trauma 
on North Atlantic right whale survival and welfare. My recent book, `We 
Are All Whalers' (1), discusses how our consumer demand enables such 
supply chain driven trauma, and we thus all contribute, as figurative 
whalers, to the right whale's extinction risk.
    I currently monitor changes in North Atlantic right whale health 
and growth, using aerial images. I also work with fishermen and 
engineers to establish buoy-less `On-Demand' fishing systems as a 
viable tool to remove line from the water column to sustain trap 
fisheries, while avoiding large whale entanglement trauma.
Omnibus Act of 2022

    The Omnibus Act 2022 makes substantial funding authorizations and 
initial appropriations for North Atlantic right whale conservation 
through the development of innovative technology. However, it also 
suspends any conservation measures planned by NOAA after the 2021 
`Final' Rule amending the regulations implementing the Atlantic Large 
Whale Take Reduction Plan, until development of additional whale 
protection measures by December 31, 2028.
    The RESCUE Whales Act (Act) would repeal the Congressionally 
mandated North Atlantic right whale conservation measures suspension 
from December 2022 to December 2028. I have three reasons to support 
that Act.
Reason 1--A species in immediate jeopardy

    These animals migrate between their calving grounds in waters off 
the SE United States, and their feeding grounds in the waters of New 
England and the Canadian Maritimes. With 340 left, they are close to 
extinction. Between 1990 and 2010, they slowly increased their numbers 
from 250 to just less than 500, but then began a steep decline in 2011 
with increased mortalities and serious injuries in US and Canadian 
waters. Currently, for every calf born, three animals die (2-4). Their 
survival, growth and reproduction are primarily impacted by foraging 
success, and trauma caused by vessel collisions and entanglement in 
fishing gear.
    In contrast, human-caused trauma is rarely observed in the closely 
related Southern right whale species (Eubalaena australis), located 
around the southern hemisphere, where fishing and vessel activities 
occur at much lower levels. As a result, they are more abundant and 
have better reproductive rates. North Atlantic right whales are all in 
poorer body condition than Southern right whales (5), and there are 
indications that entanglements in fishing gear contribute to this poor 
condition which in turn has negative impacts on growth, survival, and 
calving rates (6).
    Only 72 reproductively active North Atlantic right whale females 
remained in 2018 (7). Normally adult females, older than 8-10 years 
old, calve every three years. Currently those that calve do so on 
average every seven years. There are an additional 46 females over the 
age of 10, seen in the last few years, who have not yet calved. Thus, 
40% of females are currently barren (8). The reasons for these changes 
in reproductive output are related to human impacts and shifts in their 
prey resources (6, 9).

    Figure 1 places the six-year suspension of conservation measures in 
the context of the status of the right whale species.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Figure 1--Congressional suspension of legislatively mandated 
conservation measures under the Endangered Species and Marine Mammal 
Protection Acts in the context of what we know about the species. 
Population size is modelled from repeated sightings of each animal, 
catalogued by their individually identifiable markings. The solid blue 
line shows the most recent numbers of all North Atlantic right whales 
since 1990 through 2021 (3), and the solid black line, of breeding 
females alive through 2018 (7), the last year of that analysis. The 
dashed blue line shows a linear projection of the mean annual loss of 
all whales since their decline began in 2011. The dotted black line 
shows the same calculation for the numbers of breeding females between 
2011 and 2018. The red and green arrows show the beginning and the end 
of the conservation measures suspension. The black arrow shows when 
there will be no more breeding females in 2035, based on these 
calculations.

    If these declines continue unchanged at the projected rate, the 
species will go functionally extinct around 2035, when there are no 
more breeding females, with no more right whales to follow at some 
later point. The Omnibus Act closed about half of the remaining window 
of opportunity to recover the species. Actual loss rates will of course 
vary depending upon the timeliness and effectiveness of additional 
vessel and gear conservation and innovation measures in the US and 
Canada, and many other factors. This figure serves solely to establish 
a timeline for this argument. Extinction risk modelling (10) would 
further focus this issue, but the value of repealing the suspension to 
allow for more timely conservation measures is very clear, given what 
we now know. However, the situation is not hopeless. They came back 
from a previous low of 250 in 1990: entanglement was less severe, 
vessels fewer and slower, and calving more robust.
Reason 2--An available solution to entanglement

    The Omnibus Act supports Innovative Technology, creating the 
opportunity to make very rapid technology advances to put fishermen 
back to work in otherwise closed areas. Repeal of the suspension would 
enable faster adoption of On-Demand technology, removing persistent 
vertical buoy line from the water column by the acoustic release of 
bottom-stowed recovery gear for trap retrieval.
    These systems have already enabled commercial harvests in areas 
closed to vertical buoy lines: in the Gulf of St Lawrence Snow crab 
fishery in 2022, and in the Massachusetts Restricted Area between 
February and May 2023.
    Massachusetts fishers are harvesting lobster to sell from an area 
they have been closed out of since 2015 to support North Atlantic right 
whale conservation. On-Demand systems can and should be rapidly 
accelerated into a functional, safe, economic, commercial tool, with 
comprehensive gear conflict avoidance established within two years. 
This should initially be focused on areas of high fishing effort, when 
and where North Atlantic right whales are known to occur. A process 
that has been discussed and modelled extensively by the Atlantic Large 
Whale Take Reduction Team (11). NOAA's Northeast Fishery Science Center 
Gear Lending Library (12) is currently working with 37 Active 
collaborator fishers in ME, MA, RI, and MD, with 6 more ready for 
training, to further the development these systems. Retrieval, 
geolocation, efficiency, safety, and affordability are all major 
priorities. For instance, On-Demand systems costing hundreds, not 
thousands of dollars, are now under trial through the library. There 
will be a NOAA Fisheries workshop Fall 2023 to establish inter-
operability standards for On-Demand gear to enable other trap and 
mobile gear fishers, and law-enforcement to locate gear on plotters, 
without the need for surface buoys, and persistent vertical lines.
    The Omnibus Act seeks to enable lobster fishing in North Atlantic 
right whale habitat, by real-time detection of whales and responsive 
dynamic closures to mitigate pending risk. Canada has been attempting 
to use so-called' `dynamic management', where whale sightings trigger 
closures. However, in 2022, at least 8 entanglement events were 
detected in the Gulf of St Lawrence (8), despite these efforts. The 
problem lies with the high density of gear over a large area and a 
relative scarcity of whales within any one region. Thus, the use of on-
demand gear should be phased in to occur more broadly throughout the 
right whale's range.
    Even with gear marking requirements, between 1980 and 2020 of 1749 
entanglement events, 8% or 134 cases, were observed carrying gear (8), 
with only a subset linked to country and region of occurrence. Most 
entanglements result in scars only indicating they escaped from the 
gear, but their resulting injuries can be significant. Therefore, 
despite some information that can be gleaned for cases with attached 
gear, it will be very difficult, even with increased gear marking now 
required, to determine where entanglements occur given how few whales 
remain within a broad expanse of ocean containing millions of vertical 
lines in the water.
    Figure 2 shows recent sightings in relevant trap fishing areas. 
Concerns for a lack of recent mortality indicating no future risk of 
sub-lethal or lethal entanglement in gear dense regions, if there is 
ongoing presence of North Atlantic right whales in such areas, ignore 
ongoing risk.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Figure 2--North Atlantic right whale sightings, 2017/01/01 to 
2022/13/31 Not corrected for effort. whalemap.org. Although the 
northern Gulf of Maine has lower whale sightings, the gear is very 
dense in some areas: it is not risk free.

    Thus, defining risk hotspots to establish `static' conservation 
measures, such as removing line from the water column using On-Demand 
systems, and slowing vessels in North Atlantic right whale habitat, is 
a critical first step to allowing fisheries and vessels to co-exist 
with the whales sustainably, and profitably.
Reason 3--A persistent, unresolved animal welfare crisis

    In 2006, we reported that lethally entangled North Atlantic right 
whales take an average of six months to die (13). I naively believed 
that our report would elicit widespread popular support for development 
of fishing systems that avoided entanglement altogether. The Omnibus 
Act has provided the funding potential to conserve the species and 
fisheries while also substantially reducing the extreme pain and 
suffering these animals currently endure. But to succeed, it must be 
done without a six-year hiatus, one that could well be lethal to the 
species.
North Atlantic right whale background science
    North Atlantic right whales have evolved an energy budget that 
balances food income against the costs of metabolism, growth, 
migration, thermoregulation, diving, and foraging. In good years, 
females can also afford to breed, gestate, and suckle. However, their 
budget has not evolved to allow for unexpected costs, such as vessel 
strikes, and entanglement trauma (14). Entanglement in fishing gear can 
last for days to years and can cause unsustainable declines in blubber 
stores and require energy investment comparable to the energetic cost 
of gestating a calf, or of migration (15). Thus, recovery from such 
physiological stress and disturbance likely compromises an individual's 
future reproductive success, making entanglement a potentially 
significant contributor to fluctuations in population growth along with 
variable food supplies. As a result, mitigations addressing 
entanglement risk must also address sub-lethal as well as lethal 
stressors (16). The latter are the sole current focus of mitigations 
driven by the Marine Mammal Protection Act (MMPA) and Endangered 
Species Act (ESA). Unless sub-lethal trauma is also mitigated, the 
species will struggle to recover.
    Climate change has prompted more whales to find new foraging 
habitats increasing their risks of vessel strike and entanglement. 
Furthermore, the increased strength of lines used in the trap and 
gillnet industries since the mid-1990s (17) has increased entanglement 
severity. Severe entanglements decreased health, increased the risk of 
mortality, reduced birth rates, decreased calf survival, and increased 
calving intervals (6). However, unentangled whales also showed a health 
reduction through time although not as pronounced, suggesting that food 
limitation is also significant but not the main contributor to health 
declines. Energetic modelling of food intake, versus the energetic 
costs of normal life as a right whale, and additional costs of 
entanglement and sub-lethal vessel strikes is ongoing but hampered by 
very poor understanding of the normal energy budget of these whales.
    A study of North Atlantic right whale growth (Figure 3) showed 
entanglements have been associated with average adult body lengths 
being shorter for recent adults compared to those maturing in earlier 
decades (18). Larger whales have shorter inter-birth intervals and 
produce more calves per potential reproductive year (19).

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Figure 3--A summary of the impacts of human activities on North 
Atlantic right whale growth and reproductive success (18, 19). The 
health of an individual is the sum of feeding success, and the 
detriments of human-induced trauma. Healthy animals grow larger with 
more blubber stores (yellow) and can replenish their energy reserves 
after pregnancy and lactation, and hence be ready to reproduce again 
sooner (shorter recovery time--orange) than those affected by 
cumulative trauma. (WHOI Creative).

    In summary, the species cannot sustain further delays in mitigating 
the risk posed to them by incidental entanglements in fishing gear 
throughout their habitat. While the Omnibus Act provides the much-
needed financial support to develop On-Demand as a sustainable solution 
to fisheries, the delay in implementing further regulatory measures 
until 2028 jeopardizes the very existence of the species these funds 
are intended protect.
Citations

1. M.J. Moore, We Are All Whalers. (https://press.uchicago.edu/ucp/
books/book/chicago/W/bo113867120.html), 213 (2021), ISBN 9780226803043.

2. NOAA, North Atlantic Right Whale Stock Assessment Reports https://
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-
stock-assessments. (2022)

3. H. Pettis, R. Pace, P. Hamilton, North Atlantic Right Whale 
Consortium 2021 Annual Report Card. https://www.narwc.org/report-
cards.html. (2022)

4. R.M. Pace, R. Williams, S.D. Kraus, A.R. Knowlton, H.M. Pettis, 
Cryptic mortality of North Atlantic right whales. Conservation Science 
and Practice https://doi.org/10.1111/csp2.346 n/a, e346 (2021)

5. F. Christiansen et al., Population comparison of right whale body 
condition reveals poor state of the North Atlantic right whale. Marine 
Ecology Progress Series DOI: https://doi.org/10.3354/meps13299 640, 1-
16 (2020)

6. A.R. Knowlton et al., Fishing gear entanglement threatens recovery 
of critically endangered North Atlantic right whales. Conservation 
Science and Practice https://doi.org/10.1111/csp2.12736 4, e12736 
(2022)

7. J. Reed, L. New, P. Corkeron, R. Harcourt, Multi-event modeling of 
true reproductive states of individual female right whales provides new 
insights into their decline. Frontiers in Marine Science https://
doi.org/10.3389/fmars.2022.994481 9, (2022) 10.3389/fmars.2022.994481.

8. https://www.narwc.org/. (2023).

9. N. Record et al., Rapid Climate-Driven Circulation Changes Threaten 
Conservation of Endangered North Atlantic Right Whales. Oceanography 
32, 162-169 (2019)

10. E.L. Meyer-Gutbrod, C.H. Greene, K.T.A. Davies, Marine species 
range shifts necessitate advanced policy planning the case of the North 
Atlantic right whale. Oceanography 31, 19-23 (2018)

11. ALWTRT, https://www.fisheries.noaa.gov/new-england-mid-atlantic/
marine-mammal-protection/atlantic-large-whale-take-reduction-team. 
(2023)

12. NMFS, in https://www.fisheries.noaa.gov/new-england-mid-atlantic/
marine-mammal-protection/borrow-northeast-fisheries-science-center-
gear.

13. M.J. Moore et al., Fatally entangled right whales can die extremely 
slowly. Oceans'06 MTS/IEEE-Boston, Massachusetts September 18-21, 2006 
- ISBN: 1-4244-0115-1., 3 pp (2006) https://doi.org/10.1109/
OCEANS.2006.306792.

14. S. Sharp et al., Gross and histopathologic diagnoses from North 
Atlantic right whale Eubalaena glacialis mortalities between 2003 and 
2018. Dis. Aq. Org. DOI: https://doi.org/10.3354/dao03376 135, 1-31 
(2019)

15. J. van der Hoop, P. Corkeron, M. Moore, Entanglement is a costly 
life-history stage in large whales Ecology and Evolution 7, 92-106 
(2017) https://doi.org/10.1002/ece3.2615.

16. M.J. Moore, Policy enabling North Atlantic right whale reproductive 
health could save the species. ICES Journal of Marine Science, (2023) 
https://doi.org/10.1093/icesjms/fsac239.

17. A.R. Knowlton et al., Effects of fishing rope strength on the 
severity of large whale entanglements. Conservation Biology https://
doi.org/10.1111/cobi.12590 32, 318-328 (2015)

18. J.D. Stewart et al., Decreasing body lengths in North Atlantic 
right whales. Current Biology https://doi.org/10.3354/meps14040 31, 
3174-3179.e3173 (2021)

19. J.D. Stewart et al., Larger females have more calves: influence of 
maternal body length on fecundity in North Atlantic right whales. Mar 
EcolProg Ser https://doi.org/10.3354/meps14040 689, 179-189 (2022)

                                 ______
                                 

    Mr. Bentz. Thank you.
    I ask unanimous consent that the gentleman from Maine, Mr. 
Golden, be able to participate in today's hearing.
    Mr. Huffman. Without objection.
    Mr. Bentz. So ordered.
    Let's see, I want to recognize Congressman Golden to 
introduce our next witness, Mr. Brown.
    Mr. Golden. Thank you, Mr. Chair. I appreciate the 
opportunity to introduce these great people from Maine that are 
before your Committee today. And for the sake of saving the 
Committee time, with your permission, I will go ahead and 
introduce both Virginia Olsen and Curt Brown together.
    Mr. Bentz. Sure.
    Mr. Golden. Ms. Olsen is from my congressional district. 
Mr. Brown is from the 1st Congressional District. Both of them 
come from multi-generational lobster families in Maine. 
Virginia Olsen is a fifth-generation lobsterman from 
Stonington, Maine. She is the Director of the Maine Lobstering 
Union Local 207. Curt Brown has been lobstering since he was 8 
years old, and is from Cape Elizabeth.
    The men and women they represent are lobstermen who often 
are both businessmen and workers. They own their boats and they 
work on them. They work hard to make a living for themselves 
and their families.
    Suffice it to know that Maine lobstermen are the lifeblood 
of the coastal towns that they live in and the surrounding 
regions' economies. No one before you today is better suited to 
testify about why life as they know it and prefer it could not 
go on without lobstermen. For these two, the subject matter of 
this hearing represents a threat to their family's livelihood 
and to the tradition that they carry on.
    Virginia and Curt have years of experience as lobstermen, 
and can talk to the Committee about how Maine lobstermen are 
exemplary stewards of marine resources and the marine 
environment. They have a proud tradition of sustainable fishing 
practices.
    Both Ms. Olsen and Mr. Brown can recount for you decades of 
compliance with Federal regulations and a spirit of compromise 
and cooperation that lobstermen have taken part in to protect 
the endangered right whale species. They can also testify why 
present-day regulations are misguided, destructive to 
lobstermen, and would be ineffective in protecting right 
whales.
    Ms. Olsen and Mr. Brown are on-the-water experts in the 
Gulf of Maine, and can also testify to the reality on the 
water, the marine environment in Maine in which they operate, 
the gear that they use, and why ropeless fishing gear is not at 
this time a feasible alternative.
    We are lucky to have Ginny and Curt here today, and I want 
to thank them for making the trip to Washington to help this 
Committee better understand Maine's lobster fishery and the 
practical effects of this legislation, should it become law.
    Thank you, Mr. Chair.
    Mr. Bentz. Thank you, Mr. Golden. I recognize Mr. Brown for 
5 minutes.

STATEMENT OF CURT BROWN, MARINE BIOLOGIST, READY SEAFOOD, CAPE 
                        ELIZABETH, MAINE

    Mr. Brown. Thank you, Chairman Bentz, for inviting me to 
testify today. Members of the Subcommittee, my name is Curt 
Brown. I am a lobsterman from Cape Elizabeth, Maine, and a 
marine biologist at Ready Seafood Company in Portland, Maine.
    I think if there is one thing that we can all agree on 
today, it is that right whales are majestic animals and they 
deserve our protection. I would argue that there isn't a group 
in this country that has done more to protect right whales than 
Maine's lobstermen and women, despite the fact that most of us, 
myself included, have never seen a right whale.
    I started lobstering when I was 8 years old, and I have 
been protecting right whales since I was in high school. I 
remember back in my senior year, the spring of my senior year, 
all the way back in 1998, I spent my last $100 the spring of 
that year to buy whale-safe gear so I could go lobstering that 
summer.
    Since then our industry has done everything from putting 
weak links into our end lines, and then putting new and 
different weak links into our end lines. We have removed all of 
our floating rope and replaced it with sinking rope. We have 
reduced the number of end lines and, in the process, removed 
over 30,000 miles of rope from the Gulf of Maine. We mark all 
of our end lines with specific markings so that, in the 
unlikely event of an entanglement, we know exactly where that 
entanglement occurred. And we have closed over 900 square miles 
of productive fishing grounds at very lucrative times of year 
to fishing to protect right whales.
    All of this required a lot of effort on the part of Maine's 
lobster industry, and the take-home message of my testimony 
today is that this effort has worked. If there are two numbers 
that you remember from my testimony today, remember zero and 
zero. There have been zero documented entanglements of a right 
whale in Maine lobster gear since 2004. And there have been 
zero documented mortalities associated with Maine lobster gear 
ever. Given this, you would expect the Representative from 
Arizona and his supporters to be praising Maine's lobster 
industry for our conservation efforts. Instead, I have to be 
here today testifying in Washington, DC, when I should be home 
getting my gear ready for our upcoming lobster season.
    This bill would have a devastating impact on Maine's 
lobster fishery, as it would allow the National Marine 
Fisheries Service to move forward with a rulemaking that could 
force Maine's lobster industry to shut down.
    With the 6-year regulatory reprieve included in the omnibus 
bill, our industry has time to conduct actual science, and 
monitor where right whales are and where they aren't, and 
develop innovative gear technology that can be used for the 
future of our industry.
    Representative Grijalva's bill would eliminate the time 
needed for crucial research into patterns of right whale 
distribution and abundance, and instead force a shutdown of 
Maine's lobster fishery. And the ripple effects across Maine 
would be widespread.
    Let me repeat that. This bill, which was drafted by radical 
environmental groups for a Representative from Arizona, would 
put thousands of hardworking Mainers out of work without 
meaningfully protecting one right whale.
    Make no mistake about it. There is a lot at stake with this 
bill. The future of my family, who is here with me in this 
room, is at stake. The future of coastal communities from 
Kittery to Cutler is at stake. The future of Maine's tax base 
is at stake. And the future of our country's most iconic and 
sustainable fishery is at stake.
    When you leave here today and talk with your constituents 
and your friends about this issue, please remember those two 
numbers: zero and zero.

    Thank you.

    [The prepared statement of Mr. Brown follows:]
   Prepared Statement of Curt Brown, Marine Biologist, Ready Seafood 
                        Company, Portland, Maine
                              on H.R. 1213

    Good morning. Thank you Chairman Bentz for inviting me to testify 
this morning.

    Members of the subcommittee, my name is Curt Brown, I am a 
lobsterman from Cape Elizabeth, Maine and marine biologist at Ready 
Seafood Company in Portland, Maine. If there is one thing we can all 
agree on today, it is that right whales are majestic animals and they 
deserve our protection. I would argue that there isn't a group in this 
country that has done more to protect right whales than Maine's lobster 
harvesters, despite the fact that most of us, myself included, have 
never seen a right whale.

    I started lobstering when I was 8 years old and I've been 
protecting right whales since I was in high school. In the spring of my 
senior year in high school, back in 1998, I remember spending my last 
hundred dollars on whale safe gear so that I could go lobstering that 
summer. Since then our industry has done everything from

    --putting weak links into our endlines, and then new and different 
            weak links into our end lines.

    --we have removed all of our floating rope and replaced it with 
            sinking rope.

    --we have reduced the number of endlines and in the process removed 
            over 30,000 miles of rope from the Gulf of Maine.

    --we mark all of our endlines with specific markings so that in the 
            unlikely event of an entanglement, we know exactly where 
            that entanglement occurred.

    --we have closed over 900 square miles of productive fishing 
            grounds at very lucrative times of year.

    All of this required a lot of effort on the part of Maine's lobster 
industry and the take home message of my testimony today, is that this 
effort has worked. If you remember two numbers from my testimony today, 
remember the numbers Zero and Zero. There have been zero documented 
entanglements of a right whale in Maine lobster gear since 2004 and 
there have been zero documented entanglements of a right whale in Maine 
lobster gear ever.
    Given this, you would expect the representative from Arizona and 
his donors to be praising Maine's lobster industry for our conservation 
efforts. Instead, I have to be here today testifying in Washington D.C. 
and not getting my gear ready for our upcoming lobster season.
    This bill would have a devastating impact on Maine's lobster 
fishery as it would allow the National Marine Fisheries Service to move 
forward with a rulemaking that could force Maine's iconic industry to 
shut down. With the six-year regulatory reprieve included in the 
Omnibus Bill, our industry has time to conduct actual science and 
monitor where right whales are and aren't and develop innovative gear 
technology that can be used for the future of our fishery. 
Representative Grijalva's bill would eliminate the time needed for 
crucial research into patterns of right whale distribution and 
abundance but instead force a complete shutdown of Maine's lobster 
fishery--and the ripple effects across Maine would be widespread. Let 
me repeat that. Grijalva's bill, which was drafted by radical 
environmental groups for a representative from Arizona, would put 
thousands of hardworking Mainers out of work without meaningfully 
protecting a single North Atlantic Right Whale.

    Make no mistake about it, there is a lot that at stake with this 
bill.

    --The future of my family, who are here with me in D.C. is at stake

    --The future of coastal communities from Kittery to Cutler is at 
            stake

    --The future of Maine's tax base is at stake

    --And the future of our country's most iconic and sustainable 
            fishery is at stake

    When you leave here today and talk to your friends and constituents 
about this issue, please, please remember these two numbers: Zero and 
Zero. Thank you.

                                 ______
                                 

    Mr. Bentz. Thank you, Mr. Brown. I now recognize Ms. Olsen 
for 5 minutes.

STATEMENT OF GINNY OLSEN, POLITICAL DIRECTOR, MAINE LOBSTERING 
                   UNIONS, STONINGTON, MAINE

    Ms. Olsen. Chairman Bentz, Ranking Member Huffman, and 
honorable members of the Committee, thank you for providing me 
with the opportunity to testify today.
    My name is Virginia Olsen. I am a fifth-generation 
lobsterman from Stonington, Maine, and Director of the Maine 
Lobstering Union Local 207 of the International Association of 
Machinists and Aerospace Workers.
    We oppose H.R. 1213, Restoring Effective Science-Based 
Conservation Under Environmental Law Protecting Whales Act of 
2023.
    I work with both union and non-union fishermen up and down 
all 3,500 miles of Maine's coastline. When you think of Maine, 
you think of lobster, rightly so. Maine is the lobster capital 
of the world. We also have the largest fixed-gear fishery in 
the United States. What we don't have are right whales in any 
co-occurrence in the footprint of the Maine lobster fishery or 
lobster management Area 1. As Maine fishermen, we have 
repeatedly stepped up and done whatever was required of us to 
protect right whales. Our compliance scores have historically 
been over 95 percent, which attests to our commitment.
    What I want you to take away from my testimony today is, as 
fishermen, we are not opposed to protecting the right whale. 
Quite opposite. Our history tells you we are vested in doing 
just that. The facts will tell you the largest fixed-gear 
fishery has also never been linked to a right whale death. Our 
last entanglement was in 2004, and that whale is alive today.
    However, in large part due to climate change, right whales 
are foraging for their food source, the copepod, farther and 
farther from the fishing grounds of Maine lobstermen.
    Regulations only benefit the whale when the whale is 
present. And when there are no whales present, there is no 
justification for regulation. Unnecessary regulations only 
erode public confidence in the Endangered Species Act without 
any benefit to the endangered species itself.
    We must reduce risk where the risk exists. The ESA has a 
vital role to play, and the Maine lobstermen support that role. 
The language of the Fiscal Year 2023 Omnibus Bill gives 
integral time to Maine's lobster industry, Maine's Department 
of Marine Resources, the National Marine Fisheries Service, and 
NOAA to figure out how we can truly reduce risk for right 
whales.
    A great deal of work has gone into new technology for the 
fishing industry. However, it is not readily available, nor is 
it ready for broad industry adoption. This new technology still 
has critical functionalities that must be addressed for 
implementation with Maine's diverse fleet, including where it 
will be used and when.
    Rushing NOAA to adopt and administer new rules without 
additional research and fixing a broken system does nothing to 
protect right whales. Instead, it does everything to endanger a 
heritage fishery that not only my family, but thousands of 
others have participated in for generations. Lobstering in 
Maine is not what we do; it is who we are.
    Without the critical time provided by the omnibus bill, we 
are putting over 5,000 licensed lobstermen and positions that 
number in the tens of thousands in supporting roles in the 
unemployment line. And Maine's economy starts a race to the 
bottom that tourism alone cannot handle.
    For all of these reasons, we oppose H.R. 1213. Thank you, 
and I am happy to answer any questions you may have.

    [The prepared statement of Ms. Olsen follows:]
 Prepared Statement of Virginia Olsen, on behalf of the International 
            Association of Machinists and Aerospace Workers
                              on H.R. 1213

    Chairman Bentz, Ranking Member Huffman, and honorable members of 
the committee, thank you for providing me the opportunity to testify 
today. My name is Virginia Olsen. I am a 5th generation lobsterman from 
Stonington, Maine and Director of the Maine Lobstering Union Local 207 
of the International Association of Machinist and Aerospace Workers.
    We oppose H.R. 1213 ``Restoring Effective Science-based 
Conservation Under Environmental laws protecting Whales Act of 2023''
    I work with both Union and non-Union fishermen up and down all 3500 
miles of Maine's coastline. When you think of Maine, you think of 
lobster, rightly so, Maine is the lobster capital of the world, we also 
have the largest fixed gear fishery in the United States. What we don't 
have is right whales in any co-occurrence in the footprint of the Maine 
Lobster Fishery or Lobster Management Area 1.
    As Maine fishermen we have repeatedly stepped up and done whatever 
was required of us to protect right whales; our compliance scores have 
historically been over 95% which attests to our commitment. When we 
first started with gear modifications in the 1990s we were on board and 
thought what we were doing had a benefit to the whales. We removed 
thousands of miles of floating groundline, added in 600 lbs. break-a-
ways links to surface buoys, we put more traps on a line allowing us to 
remove additional vertical lines. Now we have marked all our vertical 
lines with state and federal colors specific to the state we are 
fishing in. Inserted weak links in our vertical lines at various points 
rigged to break at 1700 lbs.
    What I want you to take away from my testimony today is as 
fishermen we are not opposed to protecting the right whale--quite 
opposite, our history tells you we are vested in doing just that. The 
facts will tell you the largest fixed gear fishery has also never been 
linked to a right whale death, our last entanglement was 2004 and that 
whale is alive and thriving today. However, in a large part due to 
climate change, right whales are foraging for their food source, the 
copepod, farther and farther from the lobstering grounds of Maine 
lobstermen. Regulations only benefit the whale when the whales are 
present, and where there are no whales there is no justification for 
the regulation. Unnecessary regulations only erode public confidence in 
the Endangered Species Act (ESA) without any benefit to the endangered 
species itself. We must reduce risk where the risk exists.
    The ESA has a vital role to play, and the Maine lobstermen support 
that role. The language in the Fiscal Year 2023 omnibus bill gives 
integral time to Maine's lobster industry, Maine's Department of Marine 
Resources (DMR), National Marine Fisheries Service (NMFS), and National 
Oceanic and Atmospheric Administration (NOAA) to figure out how we can 
truly reduce risk for right whales. A great deal of work has gone into 
new technology for the fishing industry however it is not readily 
available nor ready for full industry implementation. This new 
technology still has critical functionalities that must be addressed 
for implementation with Maine's diverse fleet including where it will 
be used and when.
    Rushing NOAA to implement new rules without quality research and 
fixing a broken system does nothing to protect right whales. Instead, 
it does everything to endanger a heritage fishery that not only my 
family, but thousands of others have participated in for generations. 
Lobstering in Maine is not what we do, it's who we are. In my 
grandfather's last years, wheelchair bound in the island's nursing 
home, his lobster license was more important to him than his ID. To 
him, he was, and always would be, a lobsterman. One of the founders of 
Stonington's Lobster Co-op and a recipient of Stonington's Fishermen's 
Hall of Fame award, his life revolved around the sea.
    As fishermen we do not minimize the importance of protecting the 
right whale. As a community, we also do not minimize the value of our 
resources or the importance of a 1-billion-dollar industry to Maine's 
economy and the financial stability it provides to our coastal 
communities year-round. Ninety-three percent of all lobster landed in 
the United States is landed from the Gulf of Maine. The farther east 
you go in Maine, the more reliant our communities are on the lobster 
fishing industry. Other viable economic options are few and far 
between. Seventy-eight percent of the economic activity in the town of 
Stonington comes from fishing, and this is a common percentage in 
downeast Maine.
    Without the critical time provided in the Fiscal Year 2023 omnibus 
bill you are putting over 5000 licensed lobstermen and positions that 
number in the tens of thousands in supporting roles in the unemployment 
line, and Maine's economy starts a race to the bottom that tourism 
alone can't handle.
    For all of these reasons we oppose H.R. 1213. Thank you, and I am 
happy to answer any questions you may have.

                                 ______
                                 

    Mr. Bentz. Thank you. I am going to defer my questions and, 
in turn, ask the Ranking Member if he would like to go for 5 
minutes.
    Mr. Huffman. Great, thank you very much.
    Let's just get right to it. Dr. Moore, you are a right 
whale expert. We just heard the two numbers, zero and zero 
since 2004. Why would we continue to be concerned about lobster 
fishing gear and right whale entanglement in light of those 
numbers?
    Dr. Moore. Well, the other numbers you need to consider in 
this context are the number of ropes and the number of right 
whales, millions of ropes or lines in the water column, very 
few right whales in any one area at any one time.
    And, yes, the habitat for the North Atlantic right whale is 
far greater than just the northern Gulf of Maine. In fact, it 
is not a major area. But as you saw in the plot that I showed, 
recent acoustic sightings especially are showing that it is 
habitat. So, that is one way of looking at it.
    Another way of looking at it is that 92 percent of 
entanglement events do not result in gear being observed on 
right whales.
    Mr. Huffman. So, when we talk about documented 
entanglements, you are suggesting there is more to the story?
    Dr. Moore. There is more to the story. And marking of the 
gear has become a requirement recently. But even with good 
marking, if you are only going to get 8 percent of those 
entanglements showing up with gear to examine, then there is an 
awful lot of uncertainty in the zero-zero statement.
    Mr. Huffman. I appreciate that.
    Mr. Rauch, one of our witnesses in the prior panel talked 
about the fact that when you wait to take action under the 
Endangered Species Act, the action you ultimately have to take 
if a population continues to crash is more draconian, it is 
more extreme because you have less to work with.
    Are you concerned that that could happen if NOAA's hands 
are tied all the way through 2028?
    If the population continues on the trajectory Dr. Moore 
just showed us, we are in a 12-year window to extinction on 
that trajectory. Are you concerned that, if your hands are 
tied, that come 2029 you might have to close down more fishing 
grounds than you would otherwise be able to address if you had 
the full suite of regulatory tools today?
    Mr. Rauch. Thank you for the question. By 2028, we will 
need to replace the current rule with a new rule that complies 
with the Endangered Species Act and the Marine Mammal 
Protection Act. And our best understanding at this point is 
that we need to bring the total mortality down to below one 
interaction a year, where currently we were at over five, now 
we are a little bit under three. So, we are going to have to do 
that.
    If the whale does decline further, then that will be more 
difficult to do, and it will be more challenging in looking at 
the suite of options that we might have to achieve that 
objective.
    Mr. Huffman. Dr. Moore, let's talk about ropeless gear. I 
think everybody would love to wake up tomorrow and have that be 
something that everyone could just use, and we wouldn't have to 
have these fights because we love lobsters and we love right 
whales. What can we do to make that a reality, and how close 
are we?
    Dr. Moore. Well, as I said in my testimony, we are there in 
specific situations. There are lobstermen today working out of 
Sandwich, Massachusetts bringing home lobster to sell using 
ropeless gear.
    Now, that does not mean to say that all that we heard from 
Maine isn't accurate in terms of readiness. And the readiness 
has to be accelerated, and the support from the omnibus funding 
will certainly help with that.
    What needs to happen is that the gear needs to be visible 
to all bottom users and in a standardized way. NOAA, through 
the gear lending library they have, have a workshop planned for 
this fall to deal with the geolocation issues. There are safety 
issues and there are other issues I had listed earlier, but 
none of that should wait for 6 years.
    Mr. Huffman. So, is the regulatory pause actually 
potentially having the effect of slowing down the transition to 
ropeless gear?
    Dr. Moore. Well, it gives the agency another 6 years to 
contemplate things, when really they have had 20, 25 years. And 
to many of us who see this, it is just another ball being 
kicked down the road.
    And with full respect to the livelihoods that we have heard 
about today--and I do believe that the two can be sustainably 
brought forward rapidly--I mean, we made a COVID vaccine in 4 
months. And with a fraction of that amount of money, if we 
really wanted to make it happen, we would rapidly----
    Mr. Huffman. Get there. I appreciate it.
    I yield back.
    Mr. Bentz. Thank you. The Chair recognizes Representative 
Peltola for 5 minutes.
    Mrs. Peltola. Thank you, Mr. Chairman. I would like to 
address my questions to the NOAA Deputy Assistant Administrator 
for Regulatory Programs.
    Could you tell me how to pronounce your last name? In 
Alaska we say Rauch, and I don't think that is right.
    Mr. Rauch. It is Rauch.
    Mrs. Peltola. Rauch, thank you.
    And thank you, Mr. Chairman, for pronouncing it correctly, 
so that I knew that we had been pronouncing it incorrectly.
    I have a couple different questions for you. I am sure that 
you are aware of the lawsuit from the Wild Fish Conservancy in 
Washington State regarding the southern resident killer whale 
population, which resides mostly in Washington State and the 
Southeast Alaska Hook and Line King Salmon Fishery, and that 
the Alaska Congressional Delegation offered an amicus brief to 
the court.
    And as you can well imagine, we have thousands of people in 
Alaska who depend on the fishery and are very anxious. This is 
the--not trawling--trolling fishery. And I wonder if you might 
have an update to share.
    And I am also wondering if you will have an updated 
biological opinion and incidental take statement in time for 
this fishery to begin on July 1.
    Mr. Rauch. Thank you for the question, Congresswoman. We 
are currently in a state where we are awaiting a ruling from 
the district court. We had lost on the merits on the biological 
opinion. The magistrate judge then looked at the remedy, and 
requested that the biological opinion and incidental take 
statement, which authorizes the delegation to Alaska to manage 
that fishery, should be vacated, which creates a lot of 
uncertainty for the fishery if the district court judge 
approves that.
    As far as I am aware, the district court judge, unless they 
did it today, has not ruled on that motion. So, at the moment, 
the existing biological opinion and incidental take statement 
and the existing delegation to Alaska remains intact, although 
we do have to revise that opinion to meet the court's prior 
order. So, at the moment it is intact, but we are awaiting to 
see what the district court has done.
    We are currently in discussions both with the state of 
Alaska, with the Justice Department, and with others on what 
might happen should the judge decide to vacate that opinion. 
But that has not happened yet.
    Mrs. Peltola. Thank you. And then I have a different track 
of questions here.
    I am sure that you are aware that in western Alaska for 
three consecutive summers people who live along the Yukon 
River, the thousand-mile river that goes into Canada, have not 
been able to fish for a single fish. That means they have not 
been able to get their gear wet for 3 years.
    The average household in western Alaska consumes hundreds 
of pounds of fish a year. We have traditionally harvested 
hundreds of salmon, all species, every summer. A couple of 
summers ago on the Kuskokwim, I was able to catch 500 salmon, 
even though we have restrictions. So, the Kuskokwim has been in 
a little bit better shape than the Yukon.
    And meantime, while we are not seeing enough fish to meet 
our treaty obligations in Canada on the Yukon or minimal 
subsistence needs for Alaskan residents, who have a 12,000-year 
relationship with living there because of this relationship 
with salmon, meantime we have chinook and chum salmon that are 
being bycaught in another very valuable fishery that brings a 
lot of economic wealth to Alaska and the country.
    But I am wondering if you could talk about the National 
Standards. And I know you just reviewed National Standard 1, 
but many Alaskans are looking at all 9 of those National 
Standards, particularly 2, 4, 6, 8, and 9, which involve 
bycatch. They involve communities that are also dependent on 
fisheries. They involve best science. They involve allocation 
and optimum yield. That is the first one.
    But I am wondering where you are in reviewing these other 
standards, and if you believe that the commercial take 
supersedes all other uses.
    Mr. Rauch. This is a very difficult situation. We all share 
much concern with the lack of salmon, the impact on subsistence 
uses, and other uses in Alaska. It is a difficult situation for 
everyone.
    We are looking at the National Standards. I do anticipate 
that we will be shortly announcing an advance notice of 
proposed rulemaking in which we open up comments on National 
Standards 4, 8, and 9 for many of the reasons you just 
discussed.
    In the interest of time, we would be happy to talk with you 
either for the record or at a subsequent meeting about those 
plans.
    Mrs. Peltola. Thank you, Mr. Rauch. Could you tell me when 
the public comment period will be available?
    Mr. Bentz. Excuse me. Time is up.
    Mrs. Peltola. Mr. Chairman, sorry. OK, thank you.
    Mr. Bentz. The Chair recognizes Mr. Duarte for 5 minutes.
    Mr. Duarte. Thank you to the Chair and thank you to our 
panelists for being here today.
    Mr. Brown, I read your testimony. Thank you for that. Zero 
and zero is what I was to take away from that. Please review 
for us. You have gone how long in your industry in your part of 
the fishery there without having an incident or a right whale 
entanglement or death, as far as you know?
    Mr. Brown. The last documented entanglement of a North 
Atlantic right whale in Maine lobster gear was back in 2004. It 
has been quite a while, almost 20 years since we have had a 
documented entanglement.
    Mr. Duarte. And have your practices changed since then?
    Mr. Brown. Since 2004, yes. We have put more effort into 
conserving right whales, which I would argue is an important 
thing to do. I went through a long list of measures that we 
have taken to protect right whales, and I think I would argue 
that those measures have worked, they have been effective, and 
they are something that men and women up and down the coast of 
Maine are very proud of.
    Mr. Duarte. What are the regulatory agencies, Fish and 
Wildlife, the state agencies--are they coming out and--I know 
if I have 300 safe days at work, I put a little sign up in the 
workplace and say, ``Congratulations, 300 safe days at work.'' 
Are you getting recognition for this?
    Mr. Brown. No. Unfortunately, our industry has been up 
against it over the last 5 years or so, I would say. And the 
regulatory regime has gotten stricter and stricter, to the 
point where less than 4 months ago we were facing what I would 
call a regulatory cliff that would have been very, very 
difficult to come back from.
    Mr. Duarte. So, you have zero entanglements since 2004. 
Explain to me the regulatory cliff. I would like to know more 
about that. Instead of giving you a recognition or best 
practices award, or maybe some kind of--I don't know. I mean, 
what are they asking? Is there something better than zero that 
we should pursue?
    Mr. Brown. We were looking at a 90 percent risk reduction 
by 2024 from our fishery to reduce the risk to right whales. 
What that would have meant was massive closed areas along the 
coast of Maine, and a reduction by half of the number of traps 
that we are able to fish. Essentially, a death sentence for 
many, many of our fishermen and women up and down the coast.
    Mr. Duarte. After 18 years of zero injuries?
    Mr. Brown. That is correct.
    Mr. Duarte. Ms. Olsen, you represent some folks that like 
to catch lobsters.
    Ms. Olsen. Yes.
    Mr. Duarte. Tell me about the towns that these folks live 
in, and the rural communities, and their livelihoods. And are 
they going to go make hamburgers?
    Ms. Olsen. I live in Deer Isle-Stonington. It is an island 
community. We have an abridged island, but we literally are off 
the coast of Maine. When I say 78 percent of the revenues that 
operate Stonington come from fishing, I literally mean that 
with every being. We have to travel an hour to get to a 
stoplight, a fast food restaurant. There is no other form of 
economic viability for us to do other than fishing.
    We used to have a vibrant groundfish industry. We don't 
have that anymore. We have a very regulated scallop industry 
with a very short season. We have hand harvesting of soft shell 
clams, but lobstering is the bread and butter for my community.
    Mr. Duarte. And you can't do any better than zero whales in 
two decades?
    Ms. Olsen. Correct.
    [Laughter.]
    Mr. Duarte. Can you try harder?
    Ms. Olsen. We can. Absolutely. We can try harder. We can 
try harder than zero. We do not want to harm a right whale. We 
want to help right whales. But we need the time provided to be 
able to really look at where right whales are in the Gulf of 
Maine, because the lobster fishery is only in what is called 
Lobster Management Area 1. We can only go out 40 miles from the 
coast of Maine. We can't harvest lobster any deeper or farther 
from the coastline than 40 miles. But right whales are in the 
Gulf of Maine farther than that 40 miles.
    Mr. Duarte. So, you have to protect whales that aren't 
present.
    Ms. Olsen. Correct. We need----
    Mr. Duarte. And you have to do better than zero.
    Ms. Olsen. We need to do better than zero, we need to 
protect them when they are not there.
    Mr. Duarte. I stand by you on these things. I understand 
from earlier conversations that I am just a right-wing 
Republican that doesn't care enough about whales that aren't 
there and that haven't been harmed in two decades, while the 
rural humans, again, are endangered species 17,001 in terms of 
how these government priorities and regulations go.
    Well, thank you. I am sorry to join you, but thank you very 
much for coming today.
    I waive back to the Chair.
    Mr. Bentz. Thank you. The Chair recognizes Representative 
Magaziner for 5 minutes.
    Mr. Magaziner. Thank you, Mr. Chair.
    Restoring the North Atlantic right whale populations 
requires a coordinated effort between the Federal Government 
and industry stakeholders. It is vitally important that we save 
the right whale, and the only way to do it is to enact policies 
that are based on real facts.
    Unfortunately, there are some people who have been using 
the deaths of right whales to push a political agenda by 
falsely claiming that offshore wind development has some link 
to right whale deaths when the evidence clearly shows no such 
link.
    Offshore wind has the potential to unlock a tremendous 
amount of clean, affordable domestic energy that will reduce 
emissions, save money for ratepayers, and create thousands of 
good jobs in the process.
    Now, understandably, the oil and gas industry is threatened 
by the potential of offshore wind and what it can do for 
American energy independence, and have been spreading dangerous 
myths about the impact of offshore wind on marine life. These 
falsehoods are being amplified by irresponsible politicians and 
fringe media figures, many of whom gladly take financial 
support from the oil and gas industry at the same time.
    Here are the facts. Of the 36 right whale deaths 
investigated by NOAA over the last 7 years, 12 were the result 
of boat strikes, 9 from entanglements from fishing equipment, 
and none, zero, linked to offshore wind. Of the 62 serious 
injuries among right whales observed over the past 7 years, 55 
out of the 62 were the result of boat strikes or entanglements, 
zero from offshore wind.
    According to NOAA, there is no evidence to support 
speculation that noise or any other factor resulting from 
offshore wind development-related sites characterization 
surveys could potentially cause mortality of whales, and no 
specific links between recent large whale mortalities and 
currently ongoing surveys. So, when it comes to right whale 
deaths, we must focus on the real problem, based on the data 
and not based on conspiracies spread by the fossil fuel 
industry and its allies.
    Congress can do and must do more to help prevent 
unnecessary whale deaths and support the industries trying to 
comply with regulation. Last year's omnibus, for example, 
included $73 million for North Atlantic right whale 
conservation efforts. We must protect this funding in the 
upcoming budget negotiations. At the same time, agencies must 
work closely with relevant industries to reduce both strikes 
and entanglements, while also protecting the jobs and economic 
competitiveness of our nation's marine and fisheries 
industries.
    And let's be clear. This requires a careful approach with 
real collaboration between regulators and industry 
stakeholders. We have to make sure that when we produce policy, 
when we produce regulation, we do it where it is necessary and 
not where it is not. These are real solutions to the complex 
problems driving whale deaths.
    So, my question for Mr. Rauch is, can you just sort of 
explain at a high level how NOAA thinks about balancing the 
needs to protect right whale populations with the interests of 
marine industries to ensure a sensible solution that balances 
the concerns of all parties?
    Mr. Rauch. Thank you for the question. NOAA is very 
concerned about both the ongoing status of the right whales and 
about the important contributions that both the lobster 
industry, other fishing industries, the offshore shipping 
industry, the recreational fishing industry, and the wind 
industry--they all provide important jobs, they are important 
to the communities, they are important to America. We believe 
that we can recover the whales and still have those vibrant 
economies going on. And that is very difficult sometimes.
    But that is what we strive to do with our regulatory 
approaches. We strive to craft conservation measures that allow 
those industries also to develop and thrive at the same time 
that we can recover the whales.
    Mr. Magaziner. I will yield back. Thank you.
    Mr. Bentz. Thank you. The Chair recognizes Representative 
Hageman for 5 minutes.
    Ms. Hageman. Thank you. And my observation from earlier 
today seems to hold true.
    Ms. Olsen, Mr. Brown, Mr. Semanko, you are all involved 
with food production and actually providing the resources we 
need to survive, while the other two are more of the government 
employee types who don't produce, but are very willing and able 
to regulate all of you out of existence if they have that 
opportunity.
    I hate to tell you, Mr. Brown and Ms. Olsen, that as long 
as there is an unwillingness to acknowledge the impact that 
wind turbines are having on the right whales and other species, 
your industry and industries like yours are going to continue 
to be blamed. And I apologize for what your Federal Government 
is about to do to you and these agencies.
    Mr. Semanko, I want to thank you for your testimony. As you 
know, I am a water attorney, and I have dealt with the 
Endangered Species Act for many years. In June 2022, the U.S. 
Fish and Wildlife Service and the National Marine Fisheries 
Service announced the rescission of the Trump-era regulation 
definition of a ``critical habitat.'' This decision made it 
easier for radical environmental groups to target farmers, 
miners, and property owners by weaponizing the ESA against 
them.
    In my years of experience with the ESA, I have witnessed 
the same problem that you highlighted in your testimony, that 
there is no accountability for the failure stemming from the 
implementation of these laws. Currently in the West, we are 
experiencing the consequences of this failure as Federal water 
supplies are being redirected for water conservation purposes 
and toward other uses.
    We are also experiencing catastrophic forest fires, not 
because of climate change, but because of failed forest 
management policies that come out of Washington, DC.
    While we on this Committee are doing what we can to hold 
Federal agencies accountable for neglecting important 
irrigation development projects, the reversal of the Trump-era 
definition of ``critical habitat'' provides yet another 
political weapon that environmental groups get to use to target 
water users and project developers. Under such a convenient new 
definition, Federal agencies can designate man-made surface 
infrastructure projects, such as reservoirs or canals as 
critical habitat, and these kinds of designations negatively 
impact our farmers, ranchers, recreationalists, and all water 
users alike.
    Mr. Semanko, what kinds of negative impacts have you seen 
specifically on agricultural communities when critical habitat 
designations are made on man-made infrastructure?
    Mr. Semanko. Congresswoman, thanks for the question. It is 
great to see you again and in your capacity here as a Member of 
Congress. Thank you for the question.
    We have seen freezing of the ability to move forward with 
projects. You don't know what you can do and what you can't do. 
And in trying to approach this from a common-sense, non-
partisan perspective, it is one thing to look at areas where 
species currently occupy vast, huge swaths of area. For 
example, with anadromous fish. It is quite another to look at 
an area where the fish doesn't exist, there is no prospect for 
it to exist. I have been in meetings with NOAA Fisheries where 
they actually talked about the need to preserve areas as 
potential habitat above a 212-foot waterfall, where salmon have 
never existed, because some time in the future we might need a 
cold water refugia because of climate change. Maybe sort of it 
could happen, even though the fish have obviously never--and 
then I was corrected. ``Well, we don't know what kind of 
seismic shifts have occurred. Maybe fish did used to be above 
Shoshone Falls in eastern Idaho.''
    So, again, it is a freezing of the ability to know what you 
can do and you can't do. And as you know, when people need to 
invest money or are looking at investing money in projects, you 
need to have some level of certainty. That is a hallmark of 
water law in the Western United States, the certainty and the 
finality that is allowed by water rights.
    The other thing I wanted to mention is this definition we 
are talking about that has been repealed, it was in response in 
large part to the 2018 decision in Weyerhaeuser. It was a 
responsible response to dealing with the issue identified by 
the U.S. Supreme Court. The definition says, for the purposes 
of designating critical habitat only, habitat is the abiotic 
and biotic setting that currently or periodically contains the 
resources and conditions necessary to support one or more life 
processes of a species. That is it. That is all it says.
    But it does make you look and focus at is this really an 
area that is necessary to support the species in the future?
    Ms. Hageman. I very much appreciate that explanation and 
appreciate all your testimony. I appreciate you being here. 
Good luck. We are going to do whatever we can to help you. 
Thank you.
    I yield back.
    Mr. Bentz. Thank you. And seeing nobody else to ask 
questions, I guess it is my turn.
    Mr. Semanko, thank you for your analysis. I would like you 
to go into a little more detail.
    I am looking at the rule, the Biden rule, here. And I am 
just curious on your opinion of the reach of the definition 
that the rule comes up with when it comes to critical habitat 
being the space that is necessary, but not necessarily 
inhabited. And I am really curious, as I was reading through 
the Weyerhaeuser decision here in anticipation of asking you 
this question, whether you think that the rule is consistent 
with the Weyerhaeuser case.
    Mr. Semanko. Mr. Chairman, I do not believe that the new 
rule is consistent with the Weyerhauser decision. And it is 
unfortunate to see this regulatory ping-pong back and forth 
between different administrations, whether it is the Endangered 
Species Act or the Clean Water Act. It seems like one has to 
trump the other.
    But that is not what you asked. The definition is, to be 
kind, very difficult to parse through. It is very lengthy. It 
is hard to understand. And it is ironic that the reason cited 
for repealing the Trump rule, which I just read in 5 seconds, 
was that it was unclear, uncertain, indefinite, when this new 
rule is clearly that. It is clearly----
    Mr. Bentz. And I want you to continue, but I am staring at 
the first page of the 8 or 10 pages of definition under the 
Biden rule. And it reads, ``Secondly, the habitat definition 
rule''--they are talking about the Trump rule--``is not clear, 
and thus does not achieve the ambitious goals of providing 
transparency and reproducibility of outcome. Application of the 
habitat definition fundamentally relies on subjective 
interpretations.''
    That is what the Biden rule says. I am reading right out of 
the rule. True or false, is it subjective? Is the Trump rule 
subjective?
    Mr. Semanko. In my view, that is----
    Mr. Bentz. Maybe let's put it more clearly. Is it more 
subjective, less subjective than the Biden rule?
    Mr. Semanko. The Trump rule was very clear. It was very 
short, and it used words like ``necessary,'' ``abiotic,'' 
``biotic.'' It was not confusing. It was something that drew a 
clear line from the lack of a correct decision by the agency in 
the Weyerhaeuser case. It drew a clear line from that to where 
we need to get in terms of--there are criteria for determining 
whether something is critical habitat or not. And that rule, 
the Trump rule, just provided some helpful guidance in how that 
should be interpreted.
    And then 2 years later, the same agencies say no, that is 
not clear, we wrote something that wasn't clear. That doesn't 
make any sense to me.
    Mr. Bentz. And to that point, it is interesting to go back 
to the Weyerhaeuser case and look at the position that U.S. 
Fish was taking in it, which seems now to be inconsistent with 
the very rule they have written. But I am not sure if this 
conversation doesn't belong more in a court.
    Is the Biden rule being challenged now?
    Mr. Semanko. I am not aware of that. I haven't looked into 
that, and I apologize I don't know that. I can find out and get 
back to you.
    Mr. Bentz. And going to the lobster situation for a moment, 
the habitat of the right whale apparently is the entire ocean. 
Is that correct? I am not sure that is your space of expertise, 
but I am just curious.
    Mr. Semanko. It is not. But there is certainly--we heard 
testimony they have been pushed out farther. So, obviously, 
they are a long way out into the ocean.
    Mr. Bentz. Let's hop over to the bat for a moment. It 
looked to me as though the area that was shown by 
Representative Stauber was at least a third of the United 
States. If not--there it is. That seems to be a fairly broad 
brush. Does this new definition in the Biden rule support that 
type of designation?
    Mr. Semanko. Well, Mr. Chairman, first of all, I thought 
that was the Louisiana Purchase map. It is so big.
    [Laughter.]
    Mr. Semanko. It is so difficult to understand what the 
Biden administration rule provides for in terms of the 
definition of ``critical habitat'' that in my view, you could 
designate just about anything you want and justify it under 
that rule.
    Mr. Bentz. That was my reading of it.
    Well, thank you all for your testimony. And we have one 
questioner left.
    Mr. LaMalfa, you have 5 minutes.
    Mr. Huffman. Mr. Chairman, before we do that, could we, by 
unanimous consent, go ahead and enter that map into the record? 
Because I think folks will see that it shows the range of the 
bat, not some proposed critical habitat designation. There is 
an enormous difference between the two, and it was just now 
conflated. So, I think we should just put it in the record.
    Mr. Bentz. So ordered.

    [The information follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

    Mr. Huffman. Thank you.
    Mr. Bentz. Mr. LaMalfa.
    Mr. LaMalfa. Thank you, Mr. Chairman, especially for 
letting me jump in here at the end again. It is like a beaver 
call, and just one dam thing after another around here.
    For Mr. Rauch, you previously stated that the previous 
habitat definition rule from the Trump administration prevented 
the agencies from designating areas that did not currently meet 
a species' needs, even if the area might support the listed 
species in the future due to reshuffling of a natural process 
or some level of restoration.
    So, for my example, an example in my district above Shasta 
Dam, NMFS is considering conducting experimental salmon species 
introduction through a 10(j) ESA authority to determine habitat 
viability, which just seems like they are starting problems 
where one doesn't exist. But to my understanding, 10(j) was all 
still possible under the Trump administration's habitat 
definition. And it caused a lot of heartache and confusion for 
the folks living in the area that it would be changed again.
    So, NMFS was not constrained in considering these habitats 
beyond the ones already designated as critical. Why do we need 
to take this step? Why was that definition insufficient, when 
the agency clearly had authorities under the Trump plan that 
now this new definition supposedly makes available when, again, 
the Trump administration still had it as available?
    Mr. Rauch. Thank you for the question, Congressman. And you 
are correct that there are two concepts in your question. One 
is reintroduction and 10(j), where we, in order to try to 
preserve the species, we try to expand the range. And it is an 
example of where we may use habitats that the fish can use, the 
fish can expand to. It may be critical to do that, but it is 
not critical habitat. So, that area, I do not believe, is 
critical habitat. I could be wrong, but I do not believe it is.
    And we are able to do that. We are able to do that under 
the prior rule and under the current revision, which just 
restores back the pre-2020 status quo. So, we are able to do 
that, regardless of whether that is critical habitat or not.
    Mr. LaMalfa. Why was that not available, do you believe, 
under the Trump administration--or did you say it was 
available?
    Mr. Rauch. Our ability to introduce in 10(j), regardless of 
whether it is critical habitat or not, was available. It has 
been available.
    Mr. LaMalfa. Why do we need this rule change that is 
upsetting so many folks and taking the balance out of it?
    Mr. Rauch. Excuse me, the 10(j) rule?
    Mr. LaMalfa. Yes. Why the change that you are advocating 
for?
    Mr. Rauch. I don't understand the connection, sir. The 
10(j) rule, the 10(j) reintroduction could go forward with or 
without the rescission.
    Mr. LaMalfa. OK. So, it was seen as the definition was 
insufficient. And the agency wanted to take a step to further 
define it as unavailable habitat.
    Mr. Rauch. Thank you for the question. The rescission was 
in part--there were a number of reasons, as the Chairman has 
referred to. There are eight pages of reasons.
    One of the reasons was that the inherent tension between 
the idea that the area had to currently have the elements 
required for the species, or that they were recurring, and the 
concept of conservation under the Act. Because the statute says 
that for unoccupied habitat it has to be essential for 
conservation, the statute does require that, or does allow for 
the designation of unoccupied habitat if it is essential for 
conservation.
    When you look at the term ``conservation'' under the ESA, 
it talks about doing things like restoring habitat, using 
10(j), doing other things to try to recover the species in 
places where they may not currently be. So, there was a tension 
between those two terms, which is one of the reasons why the 
definition was rescinded.
    It wasn't replaced with anything. And instead what we said 
is on a case-by-case basis.
    Mr. LaMalfa. Well, the frustration with that is that the 
movement is going toward any habitat that could potentially 
host a species. We have the valley elderberry beetle situation. 
If there is an elderberry bush, even though no history of a 
beetle in recorded history is in that area, well, you can't 
dare touch the bush, for example, for cleaning up a levee or 
restoring a levee because the elderberry beetle might come 
along, without years and years of permits and such and 
mitigation. So, it makes things unaffordable for the 
possibility that really didn't exist.
    I am out of time. I yield back.
    Mr. Bentz. Thank you, and I thank the witnesses for their 
valuable testimony and the Members for their questions.
    The members of the Committee may have some additional 
questions for the witnesses, and we will ask you to respond to 
these in writing.
    Under Committee Rule 3, members of the Committee must 
submit questions to the Subcommittee Clerk by 5 p.m. Eastern 
Time on April 21. The hearing record will be held open for 10 
business days for these responses.
    If there is no further business, without objection, the 
Subcommittee stands adjourned.

    [Whereupon, at 1:28 p.m., the Subcommittee was adjourned.]

            [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

                                                 April 17, 2023    

Hon. Bruce Westerman, Chairman
Hon. Raul Grijalva, Ranking Member
Natural Resources Committee
U.S. House of Representatives
Washington, DC 20515

Re: Opposition to Legislation Providing for Congressional Disapproval 
        of Final Rules Protecting the Lesser Prairie-Chicken and 
        Northern Long-Eared Bat and Rescinding the Definition of 
        ``Habitat''

    Dear Chairman Westerman, Ranking Member Grijalva:

    On behalf of our 35 organizations and our millions of members and 
supporters, we write to express our strong opposition to H.J. Res. 29 
and H.J. Res. 49, which would nullify two rules issued by U.S. Fish and 
Wildlife Service protecting the lesser prairie-chicken and the northern 
long-eared bat under the Endangered Species Act, and H.J. Res. 46, 
which would nullify the final rule issued jointly by the Service and 
the National Marine Fisheries Service rescinding the definition of 
``habitat'' under the Act.
    Using the Congressional Review Act to rescind protections for the 
lesser prairie-chicken, northern long-eared bat, or any other 
endangered wildlife or plant would have disastrous consequences. The 
Congressional Review Act is a blunt instrument with far reaching 
impacts. Upon enactment of a CRA resolution, the underlying rule 
becomes void and an agency is prevented from future issuance of a rule 
that is ``substantially the same'' without an act of Congress. For an 
endangered species, use of the CRA could prevent the Fish and Wildlife 
Service from ever protecting the lesser prairie-chicken or the northern 
long-eared bat under the Endangered Species Act in the future, even if 
their populations collapsed or just a handful of individuals remained. 
Simply put, a vote to approve a CRA resolution for an endangered 
species is a vote to condemn that species to extinction.
    President Reagan signed into law the Endangered Species Act 
Amendments of 1982, which made clear that all decisions regarding the 
listing of species as threatened or endangered were to be made ``solely 
on the basis of the best scientific and commercial data available.'' 
\1\ The reason for this important clarification in the law is simple. 
Whether or not a species is facing extinction is a scientific question 
only. The Endangered Species Act contains numerous provisions to 
provide flexibility and address any hardships that might arise after a 
species is listed, but short-term political expediency and purported 
economic costs should not influence listing decisions themselves.
---------------------------------------------------------------------------
    \1\ Pub. Law 97-304, Oct. 13, 1982, 96 Stat 1411.
---------------------------------------------------------------------------
    The listing process under the Endangered Species Act requires that 
the Service consider all relevant science and data regarding any 
decision to list a species. State fish and wildlife agencies are given 
special additional procedural privileges to ensure their scientific 
assessments are fully considered.\2\ Every listing decision undergoes 
scientific peer review and public notice and comment. In contrast, the 
CRA ignores all of these rigorous and transparent processes, sidelines 
all meaningful debate, and provides only an unnuanced yes or no choice 
about any federal agency decision.
---------------------------------------------------------------------------
    \2\ 16 U.S.C. 1533(b)(5)(A)(ii).
---------------------------------------------------------------------------
    Known for the males' elaborate calls and showy displays of reddish-
orange air sacs while performing their spring mating dances, the lesser 
prairie-chicken is a highly imperiled ground-nesting bird that once 
roamed the southern Great Plains by the millions, but today has 
declined to roughly 27,000 birds--including a decline of 20% since 
2021--and now is found in less than 10% of its former habitats. After 
nearly three decades of waiting for protection, the Fish and Wildlife 
Service issued a final rule in November 2022 protecting the lesser 
prairie-chicken under the Endangered Species Act. Two populations are 
now protected: a Texas and New Mexico population is listed as 
endangered, while a separate northern population in Texas, Oklahoma, 
Kansas and Colorado is listed as threatened. In making its final 
determination, the Service specifically found that existing voluntary 
conservation actions by States and the oil and gas industry ``will not 
be enough to offset . . . habitat losses,'' and that ``the expected 
conservation efforts are inadequate to prevent continued declines in 
total habitat availability, much less restore some of what has been 
lost, and overall viability for this species will continue to 
decline.'' \3\
---------------------------------------------------------------------------
    \3\ 87 Fed. Reg. 72674, 72708, Endangered and Threatened Wildlife 
and Plants; Lesser Prairie-Chicken; Threatened Status with Section 4(d) 
Rule for the Northern Distinct Population Segment and Endangered Status 
for the Southern Distinct Population Segment, available at: https://
www.federalregister.gov/documents/2022/11/25/2022-25214/endangered-and-
threatened-wildlife-and-plants-lesser-prairie-chicken-threatened-
status-with-section.
---------------------------------------------------------------------------
    Northern long-eared bats have declined by 99% in a span of just two 
decades. White-nose syndrome, caused by an exotic fungus originating in 
Europe, has devastated bat populations across their entire range. 
Biologists consider the fungus to be the most severe wildlife disease 
outbreak in history. However, human activities have also played a major 
role in the bats' catastrophic decline. Northern long-eared bats live 
in large blocks of mature forests and forage along wooded hillsides and 
ridgelines, so forest fragmentation, logging, and habitat conversion--
clearing trees for agriculture and development--are major ongoing 
threats to the species, as well as oil and gas drilling, contamination 
from pesticides, and poorly mitigated wind energy projects. The Fish 
and Wildlife Service listed the bat as endangered in November 2022 
after finding that its previous ``threatened'' status was not 
sufficiently protective to keep the bat from slipping further toward 
extinction. In its final listing rule, the Service found that the bat 
``continues to experience the catastrophic effects of [white nose 
syndrome] and the compounding effect of other stressors from which 
extinction is now a plausible outcome under the current conditions.'' 
\4\
---------------------------------------------------------------------------
    \4\ 87 Fed. Reg. 73488, 73501, Endangered and Threatened Wildlife 
and Plants; Endangered Species Status for Northern Long-Eared Bat, 
available at: https://www.govinfo.gov/content/pkg/FR-2022-11-30/pdf/
2022-25998.pdf.
---------------------------------------------------------------------------
    Finally, H.J. Res. 46 would nullify the Biden administration's 
final rule rescinding the regulatory definition of ``habitat'' and 
restore the pro-polluter Trump-era regulation that severely curtailed 
when lands or waters could be designated as ``critical habitat'' for 
imperiled species. This unnecessary and short-sighted Trump rule 
limited protections to only those areas that could currently support 
the species, while it excluded areas that were previously occupied and 
could be restored, or that would have provided additional habitat for 
future recovery as climate change shifts where species can live. In 
rescinding the rule, the Services explained that the Trump-era 
regulation was ``unclear and confusing and inconsistent with the 
conservation purposes of the Act . . .'' \5\ and that it is more 
appropriate and more consistent with the Endangered Species Act to 
``determine what areas qualify as habitat for a given species on a 
case-by-case basis using the best scientific data available for the 
particular species.'' \6\
---------------------------------------------------------------------------
    \5\ 87 Fed. Reg. 37757, 37757, Endangered and Threatened Wildlife 
and Plants; Regulations for Listing Endangered and Threatened Species 
and Designating Critical Habitat, available at: https://
www.govinfo.gov/content/pkg/FR-2022-06-24/pdf/2022-13368.pdf.
    \6\ Id. at 37758.

    The Congressional Review Act is an extreme law that has been abused 
by anti-environmental members of Congress who want to permanently strip 
away protections for our environment, wildlife and natural heritage. 
Using it here would set an extremely dangerous precedent and would put 
---------------------------------------------------------------------------
some of our most iconic species at risk of disappearing forever.

    For these reasons, we urge you to oppose H.J. Res. 29, H.J. Res. 
46, and
H.J. Res 49.

            Sincerely,

        Center for Biological 
        Diversity                     North Central Washington Audubon 
                                      Society

        Animal Welfare Institute      Northeastern Minnesotans for 
                                      Wilderness

        Bat Conservation 
        International                 NY4WHALES

        Buffalo Field Campaign        Oceanic Preservation Society

        Christian Council of 
        Delmarva                      Partnership for Policy Integrity

        Defenders of Wildlife         Predator Defense

        Endangered Habitats League    Primate Conservation Inc

        Endangered Species 
        Coalition                     Resource Renewal Institute

        FOUR PAWS USA                 RESTORE: The North Woods

        Friends of Ballona Wetlands   Rocky Mountain Wild

        Friends of Blackwater, Inc.   Standing Trees

        Friends of the Earth          The #RelistWolves Campaign

        Heartwood                     The Humane Society of the United 
                                      States

        Howling For Wolves            The Rewidling Institute

        Humane Action Pennsylvania    The Urban Wildlands Group

        Humane Action Pittsburgh      Western Watersheds Project
        Humane Society Legislative 
        Fund                          WildEarth Guardians

        Kentucky Heartwood            World Animal Protection

        League of Conservation 
        Voters                        Zoo New England: Franklin Park 
                                      Zoo & Stone Zoo

                                 ______
                                 

                        Statement for the Record
                on behalf of organizations listed below
              Regarding the ``RESCUE Whales Act of 2023''
                        Tuesday, April 18, 2023

    Thank you, Chair Bentz, Ranking Member Huffman, and members of the 
Subcommittee for this opportunity to submit testimony about the 
critically endangered North Atlantic right whale (``right whale'') and 
the value of our bedrock wildlife protection laws, the Marine Mammal 
Protection Act (MMPA) and the Endangered Species Act (ESA). Because 
fewer than 340 right whales remain alive and because their numbers are 
in sharp decline, the undersigned coalition of national and regional 
groups focused on protecting right whales supports swift passage of 
Rep. Grijalva's Restoring Effective Science-based Conservation Under 
Environmental Laws Protecting (RESCUE) Whales Act.\1\
---------------------------------------------------------------------------
    \1\ H.R. 1213--118th Congress (2023-2024): RESCUE Whales Act of 
2023 (February 27, 2023).
---------------------------------------------------------------------------
    Additionally, we seek to ensure that the MMPA and ESA are not 
continuously chipped away but are robustly implemented based on the 
best available science to ensure the survival and recovery of imperiled 
species and marine mammals. These laws, which have stood the test of 
time over five decades, represent our nation's commitment to protect 
its rich heritage of biodiversity. We must guarantee that the above 
essential environmental laws continue to prevent federal actions from 
impacting endangered species, and that robust consultations are carried 
out to tackle risks from human-caused threats.\2\
---------------------------------------------------------------------------
    \2\ Id.
---------------------------------------------------------------------------
    The RESCUE Whales Act would revoke section 101(a) of the last-
minute addition (the ``Right Whale Rider''), added to FY 2023 omnibus 
funding package. Section 101(a) deemed the September 2021 regulation 
amending the Atlantic Large Whale Take Reduction Plan under the MMPA 
sufficient to ensure that continuing state and federal authorizations 
of the American lobster and Jonah crab fishery are fully compliant with 
the MMPA and ESA through December 31, 2028.\3\
---------------------------------------------------------------------------
    \3\ Title I, ``North Atlantic Right Whales and Regulations,'' Pub. 
L. No. 117-328, Div. JJ, 136 Stat. 4459, 6089-90 (2022).
---------------------------------------------------------------------------
    The Right Whale Rider overrode a court decision ordering NMFS to 
complete a new rulemaking by December 2024 to correct its serious legal 
errors in failing to follow its own science on the reductions in lethal 
entanglements necessary to allow the right whale to recover. Congress 
should neither legislate to overrule specific court decisions nor 
interfere with NMFS's mandatory duty to follow both the science and the 
law in protecting the right whale.

 Species Status and Background: Right Whale Rider Spells Disaster for 
                              Right Whales

    The North Atlantic right whale is one of the most endangered large 
whale species in the world. It has been listed under the ESA since 1970 
and protected by the MMPA since 1972.\4\ The most recent population 
estimate shows a continued decline, with approximately 340 whales 
remaining, including only about 70 breeding females.\5\ NMFS has 
determined that, for the species to recover, only 0.7 right whales per 
year (or seven right whales every decade) can be killed due to human 
causes.\6\
---------------------------------------------------------------------------
    \4\ 50 C.F.R. Sec. 224.101
    \5\ New England Aquarium. (2022). North Atlantic right whales' 
downward trend continues as updates population numbers released. 
https://www.neaq.org/about-us/news-media/press-kit/press-releases/
north-atlantic-right-whales-downward-trend-continues-as-updated-
population-numbers-released/; Reed, J., New, L., Corkeron, P., and 
Harcourt, R. (2022). Multi-event modeling of true reproductive status 
of individual female right whales provides new insights into their 
decline. Marine Science 9. doi: 10.3389/fmars.2022.994481
    \6\ NOAA Fisheries. (2022). Draft North Atlantic Right Whale 
(Eubalaena glacialis): Western Atlantic Stock, at 17 https://
www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-
stock-assessment-reports.
---------------------------------------------------------------------------
    Entanglement in fishing gear is one of the two known major causes 
of adult right whale mortality. Moreover, non-lethal entanglements also 
cause serious health impacts, including by lowering reproduction 
rates.\7\ Entanglements are a frequent occurrence in the population. A 
recent study found that about 86% of right whales have been entangled 
at least once and some showed evidence of as many as eight 
entanglements during their lifetime.\8\ In 2017, NMFS declared an 
Unusual Mortality Event (UME)--an event involving a significant die-off 
of the population that demands immediate response--that is still 
ongoing. In this time, entanglements have been the documented cause of 
9 mortalities, 30 serious (i.e., likely lethal) injuries, and 21 
sublethal injuries or illnesses.\9\ Additionally, the true impact of 
entanglements on right whales is much higher, as scientists estimate 
that observed deaths only represent one-third of total right whale 
deaths and that entanglements are likely responsible for two-thirds of 
unobserved, or cryptic, mortalities.\10\
---------------------------------------------------------------------------
    \7\ Knowlton, AR, Clark, JS, Hamilton, PK, et al. (2022). Fishing 
gear entanglement threatens recovery of critically endangered North 
Atlantic right whales. Conservation Science and Practice 4(8). 
doi:10.1111/csp2.12736
    \8\ Moore MJ, Rowles TK, Fauquier DA, et al. (2021). REVIEW 
Assessing North Atlantic right whale health: threats, and development 
of tools critical for conservation of the species. Dis Aquat Org 
143:205-226. https://doi.org/10.3354/dao03578
    \9\ 2017-2023 North Atlantic Right Whale Unusual Mortality Event 
(n.d.) NOAA Fisheries. https://www.fisheries.noaa.gov/national/marine-
life-distress/2017-2023-north-atlantic-right-whale-unusual-mortality-
event
    \10\ Pace RM, Williams R, Kraus SD, et al. (2021). Cryptic 
mortality of North Atlantic right whales. Conservation Science and 
Practice 3(2). doi: 10.1111/csp2.346
---------------------------------------------------------------------------
    The right whale is protected by both the ESA and MMPA. In 1973, 
Congress enacted the ESA ``to provide a program for the conservation'' 
of endangered species.\11\ ``Conservation'' is defined by statute to 
mean ``the use of all methods and procedures which are necessary to 
bring any endangered species . . . to the point at which the measures 
provided by this chapter are no longer necessary.'' \12\ Under the ESA, 
NMFS has a mandate to ensure that any action it authorizes, funds, or 
carries out does not jeopardize the survival and recovery of the right 
whale.\13\ Enacted in 1972, the MMPA's ``major objective'' is to stop 
marine mammal populations from declining and ensure that they remain a 
functioning part of their marine ecosystems.\14\ For both statutes, 
NMFS is the lead agency tasked with protecting most marine mammals, 
including right whales.4 Under these mandates, NMFS has the 
authority and obligation to protect endangered marine mammals from 
injury, death, and potentially extinction in this case.
---------------------------------------------------------------------------
    \11\ 16 U.S.C. Sec. 1531(b).
    \12\ Id. Sec. 1532(19).
    \13\ 16 U.S.C. Sec. 1536(a)(2).
    \14\ Id. Sec. 1361(6).
---------------------------------------------------------------------------
    Added to the FY 2023 omnibus mere days before the legislation was 
finalized, the Right Whale Rider essentially sidestepped the MMPA and 
ESA, a district court order in ongoing litigation, and the normal 
legislative process. This addition pushed back the deadline for NMFS to 
issue new regulations on reducing lethal entanglement risk in the 
American lobster and Jonah crab fishery until December 31, 2028. As it 
stands, this Right Whale Rider has two primary impacts on federal 
regulations and funding related to right whale conservation.
    First, the Right Whale Rider deemed a NMFS 2021 rule amending the 
regulations implementing the Atlantic Large Whale Take Reduction Plan 
(``the 2021 Rule'') sufficient to ensure that continuing federal and 
state authorizations of the American lobster and Jonah crab fishery are 
in full compliance with the MMPA and ESA through December 31, 2028. The 
rider requires that NMFS implement new regulations by that date, 
``utilizing existing and innovative gear technologies, as 
appropriate.'' \15\ Just the month before, the United States District 
Court for the District of Columbia held that NMFS must issue a new rule 
by December 9, 2024.\16\ In effect, the Right Whale Rider pushed back 
this court-ordered deadline by four years. Revised regulations are 
absolutely essential to preventing the continued decline of the right 
whale from lethal entanglements in the American lobster and Jonah crab 
fishery, as the MMPA expressly requires.
---------------------------------------------------------------------------
    \15\ Consolidated Appropriations Act, 2023 at Sec. 101(a)(2).
    \16\ Center for Biological Diversity v. Raimondo, Civil Action No. 
18-112 (D.D.C.), ECF No. 239.
---------------------------------------------------------------------------
    Second, between now and the end of 2028, NMFS is also required by 
the Right Whale Rider to submit annual reports to Congress on: the 
status of right whale, the necessary actions and plans to implement 
regulations to reduce right whale deaths by 2028, serious injury and 
mortalities caused per fishery and country, and the number of American 
lobster and Jonah crab fishers that have transitioned to new, 
innovative gear technologies. As part of these reports, the legislative 
language specifies that NMFS must report on ``the actions taken and 
plans to implement measures expected to not exceed Potential Biological 
Removal by December 31, 2028.'' \17\ This language implicitly 
acknowledges that the 2021 Rule alone will not adequately reduce the 
rate of human-caused mortality and serious injury of right whales.
---------------------------------------------------------------------------
    \17\ Consolidated Appropriations Act, 2023 at Sec. 101(a)(3).
---------------------------------------------------------------------------

  RESCUE Whales Act: Common Sense Solutions Rather than Extreme Carve-
                              outs Needed

    Rep. Grijalva's RESCUE Whales Act would repeal the Right Whale 
Rider and return to the prior status quo, requiring NMFS to comply with 
the court order requiring it to issue new regulations by December 9, 
2024, to adhere with the MMPA and paving the way for right whales to 
avoid extinction. Combined with significant funding appropriations in 
FY 2023 and authorized over the next years, the grant funding from the 
FY 2023 omnibus toward innovative gear, including on-demand fishing 
gear, Rep. Grijalva's RESCUE Whales Act would give this species a 
fighting chance against its primary threats from entanglement in 
fishing gear and vessel collisions. We recommend that innovative gear 
technologies mentioned in the new grant program be prioritized toward 
the buildout and ramping up of on-demand fishing technologies, 
including the tracking technologies needed to avoid gear conflicts and 
the regulations necessary to govern the use and enforcement of on-
demand fishing. The swift development of on-demand gear to be deployed 
where right whales co-occur with dense aggregations of heavy, dangerous 
lobster gear and other new technologies will be vital to reducing 
impacts to right whales and enabling co-existence with the American 
lobster and Jonah crab fishery.
    The FY 2023 omnibus set aside significant funding for gear 
innovations and mitigating fishing entanglement and vessel strikes for 
right whales. However, the eleventh hour deal made to include this 
Right Whale Rider may push this species to the point of no return. As 
one million species face extinction, we should be helping species like 
the right whale recover and creating a more abundant, resilient world 
for future generations, not gutting the very laws set in place to 
provide desperately needed protections for these imperiled animals.\18\ 
We cannot allow extreme reactions to congressional politics dictate the 
future of the right whale and set dangerous precedent for other species 
along the way.
---------------------------------------------------------------------------
    \18\ IPBES. (2019). Global assessment report on biodiversity and 
ecosystem services of the Intergovernmental Science-Policy Platform on 
Biodiversity and Ecosystem Services (Version 1). Zenodo.doi: 
10.5281zenodo.3831673
---------------------------------------------------------------------------
    While we will not solve these complex marine mammal and fisheries 
management issues overnight, we must continue working together. 
Unfortunately, the Right Whale Rider does the opposite by undermining 
decades of science. Right whales cannot afford to lose this time; each 
year we deny science-based protections to the species, it creeps closer 
to extinction. Our groups thank Rep. Grijalva and the original co-
sponsors of the RESCUE Whales Act for their support of conservation 
policies that are forward-looking and science-based, balancing the 
needs of endangered species and ocean stakeholders.

    Thank you for the opportunity to submit the above testimony,

            Sincerely,

        Animal Welfare Institute      Ocean Defense Initiative

        Center for Biological 
        Diversity                     Pacific Whale Foundation

        Cetacean Society 
        International                 Predator Defense Public

        Defenders of Wildlife         Employees for Environmental 
                                      Responsibility, Inc.
        Earthjustice                  Resource Renewal Institute

        Endangered Habitats League    Rocky Mountain Wild

        Endangered Species 
        Coalition                     Sierra Club

        Environment America           Southern Environmental Law Center

        Environmental Investigation 
        Agency                        The International Wildlife 
                                      Coexistence Network

        Friends of the Earth          The Urban Wildlands Group

        GREAT Old Broads for 
        Wilderness                    Turtle Island Restoration Network

        Tucson Howling For Wolves     Voices of Wildlife in NH

        IFAW                          Whale and Dolphin Conservation

        International Marine Mammal 
        Project of Earth Island 
        Institute                     Wolf Conservation Center

        Natural Resources Defense 
        Council                       World Wildlife Fund

        Oceana

                                 ______
                                 

                        National Audubon Society

                                                 April 18, 2023    

Hon. Bruce Westerman, Chairman
Hon. Raul Grijalva, Ranking Member
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515

    Dear Chairman Westerman and Ranking Member Grijalva:

    National Audubon Society strongly opposes H.J. Res. 29, the 
Congressional Review Act (CRA) resolution that would rescind the 
Endangered Species Act (ESA) listing of the Lesser Prairie-Chicken. 
Further, Audubon opposes all CRA resolutions that would undermine 
science-based decision making and preclude the opportunity to provide 
needed protections for species and critical habitat, such as H.J. Res. 
46 and H.J. Res 49.

    The Lesser Prairie-Chicken is one of the most imperiled bird 
species in the nation. Populations have fallen 97 percent since the 
1960s, and recent numbers are approaching historic lows, which saw a 20 
percent drop in just one year between 2021 and 2022. These critically-
low numbers put the population at high risk of extinction, including 
from events such as drought or harsh winters.

    Listing this species in 2022 was the right and necessary decision. 
Protections were first proposed in 1995, and efforts in recent decades 
have failed to recover the species to date. We need the full, robust 
conservation toolkit now to recover this species, as the ESA intended, 
and it is critical to protect and conserve the last, best places that 
will allow the species to survive.

    H.J. Res. 29 would not only rescind protections and put the 
continued existence of this species at severe risk, it would prevent 
any rule that is ``substantially the same'' in the future, which would 
likely doom this species to extinction.

    We also have significant concerns about H.J. Res 46 and H.J. Res 
49, which would interfere with science-based rulemakings on the ESA. In 
particular, H.J. Res. 46 would overturn a rule that rescinds a 
rulemaking that restricts the ability to designate critical habitat 
that could support species through restoration and from climate change 
impacts.

    Thank you for your consideration of our views, and let us know if 
there any questions.

            Sincerely,

                                               Jesse Walls,
                                        Sr. Dir. Government Affairs

                                 ______
                                 

                National Parks Conservation Association

                                                 April 18, 2023    

Re: NPCA Position on Legislation before the Subcommittee on Water, 
        Wildlife and Fisheries

    Dear Representative:

    Since 1919, National Parks Conservation Association (NPCA) has been 
the leading voice of the American people in protecting and enhancing 
our National Park System. On behalf of our 1.6 million members and 
supporters nationwide, we write to share our thoughts on select 
legislation ahead of a hearing in the Committee on Natural Resources 
Subcommittee on Water, Wildlife and Fisheries scheduled for April 18, 
2023.
    For 50 years, the Endangered Species Act (ESA) has been a 
critically important tool in the conservation and restoration of the 
over 600 threatened and endangered species that depend on habitats in 
national parks. Through the ESA, Congress set up a comprehensive system 
where the Secretary of the Interior would use the best scientific and 
commercial data available to conduct status reviews of species to 
determine which should be listed and protected. Species like the 
California condor, the humpback whale, and the Santa Rosa Island fox 
have all benefited from the restoration and recovery support the ESA 
provides.
    NPCA is very concerned by the use of the Congressional Review Act 
(CRA) to rescind agency rulemakings specific to the ESA. If enacted, a 
CRA resolution would void the rule in question and prevent the agency 
from issuing a substantially similar rule in the future. This could 
severely hamper the government's ability to take protective actions if 
species populations decline or are under significant threat. In 
addition to our general concerns about the use of the CRA, NPCA has 
specific concerns about two resolutions under consideration:

    H.J. Res. 46--Providing for congressional disapproval of 
``Endangered and Threatened Wildlife and Plants; Regulations for 
Listing Endangered and Threatened Species and Designating Critical 
Habitat'': NPCA opposes this resolution which would eliminate a 2022 
federal rulemaking and effectively reinstate a very problematic 2020 
rulemaking. The 2020 regulation, which the U.S. Fish and Wildlife 
Service (FWS) and National Marine Fisheries Service (NMFS) rescinded in 
2022, limited the agencies' discretion in excluding areas of critical 
habitat under Section 4(b)(2) of the ESA. Critical habitat designations 
for threatened and endangered park species many times reach well beyond 
park boundaries. For example, the Canada lynx in Grand Teton National 
Park and the piping plover at Cape Hatteras National Seashore both 
depend on in-park and beyond boundaries critical habitat. Critical 
habitat designations are an important tool for protecting listed 
species because federal agencies must consult and work with FWS and 
NMFS, as appropriate, to ensure that its actions do not degrade or 
destroy those areas. A return to the 2020 regulation would make it more 
challenging to protect areas outside park boundaries that park species 
rely on to survive.

    H.J. Res. 49--Providing for congressional disapproval of 
``Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Northern Long-Eared Bat'': NPCA opposes this resolution 
which would eliminate the FWS final rule to list the northern long-
eared bat as an endangered species, thereby undercutting and 
sidestepping the science and policy-based evaluation of listing status 
required under current law. The bat, listed as threatened in 2015, 
faces extinction due to the impacts of white-nose syndrome, a deadly 
disease affecting hibernating bats across North America including 
populations that reside within National Park Service managed lands. 
White-nose syndrome is impacting 80% of the species' entire range and 
is expected to spread to 100%. We cannot simply choose to ignore the 
reality of the challenges this species faces. This resolution would not 
only undo the current endangered species listing for the bat, but it 
could also prevent FWS for taking future listing actions as the species 
continues to decline.

    Thank you for considering our views.

            Sincerely,

                                          Christina Hazard,
                                               Legislative Director

                                 [all]