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




              ESA AT 50: THE DESTRUCTIVE COST OF THE ESA 

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

                           OVERSIGHT 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

                               __________

                             July 18, 2023

                               __________

                           Serial No. 118-49

                               __________

       Printed for the use of the Committee on Natural Resources





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                     COMMITTEE ON NATURAL RESOURCES

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

Doug Lamborn, CO                  Grace F. Napolitano, CA   
Robert J. Wittman, VA             Gregorio Kilili Camacho Sablan, CNMI 
Tom McClintock, CA                Jared Huffman, CA  
Paul Gosar, AZ                    Ruben Gallego, AZ  
Garret Graves, LA                 Joe Neguse, CO  
Aumua Amata C. Radewagen, AS      Mike Levin, CA  
Doug LaMalfa, CA                  Katie Porter, CA  
Daniel Webster, FL                Teresa Leger Fernandez, NM  
Jenniffer Gonzalez-Colon, PR      Melanie A. Stansbury, NM  
Russ Fulcher, ID                  Mary Sattler Peltola, AK  
Pete Stauber, MN                  Alexandria Ocasio-Cortez, NY  
John R. Curtis, UT                Kevin Mullin, CA    
Tom Tiffany, WI                   Val T. Hoyle, OR   
Jerry Carl, AL                    Sydney Kamlager-Dove, CA
Matt Rosendale, MT                Seth Magaziner, RI   
Lauren Boebert, CO                Nydia M. Velazquez, NY  
Cliff Bentz, OR                   Ed Case, HI   
Jen Kiggans, VA                   Debbie Dingell, MI  
Jim Moylan, GU                    Susie Lee, NV  
Wesley P. Hunt, TX    
Mike Collins, GA    
Anna Paulina Luna, FL   
John Duarte, CA   
Harriet M. Hageman, WY   

                    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 July 18, 2023....................................     1

Statement of Members:

    Bentz, Hon. Cliff, a Representative in Congress from the 
      State of Oregon............................................     1
    Huffman, Hon. Jared, a Representative in Congress from the 
      State of California........................................     3
    Westerman Hon. Bruce, a Representative in Congress from the 
      State of Arkansas..........................................     5
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     6

Statement of Witnesses:

    Coit, Janet, Assistant Administrator, National Oceanic and 
      Atmospheric Administration, U.S. Department of Commerce, 
      Washington, DC.............................................     7
        Prepared statement of....................................     9
        Questions submitted for the record.......................    11
    Williams, Hon. Martha, Director, U.S. Fish and Wildlife 
      Service, U.S. Department of the Interior, Washington, DC...    11
        Prepared statement of....................................    13
        Questions submitted for the record.......................    20
    Wood, Jonathan, Vice President of Law and Policy, Property 
      and Environment Research Center, Bozeman, Montana..........    21
        Prepared statement of....................................    23
    Ashe, Dan, President and CEO, Association of Zoos and 
      Aquariums, Silver Spring, Maryland.........................    33
        Prepared statement of....................................    34
    Jahnz, Justin, Chief Executive Officer, East Central Energy, 
      Braham, Minnesota..........................................    37
        Prepared statement of....................................    39

    Vibbert, Sean, Owner, Obsidian Seed Company, Madras, Oregon..    42
        Prepared statement of....................................    43

Additional Materials Submitted for the Record:

    Submissions for the Record by Representatives Bentz/Westerman

        Associated Builders and Contractors, Letter to Committee 
          dated July 24, 2023....................................    70

    Submissions for the Record by Representative McClintock

        ``Biodiversity loss: How accurate are the numbers?'', 
          BBC, April 25, 2012....................................    50

    Submissions for the Record by Representative Grijalva

        Center for Biological Diversity, Letter to Committee 
          dated July 17, 2023....................................    71
                                     


 
    OVERSIGHT HEARING ON ESA AT 50: THE DESTRUCTIVE COST OF THE ESA   

                              ----------                              


                           Day, July 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 2:09 p.m. in 
Room 1324, Longworth House Office Building, Hon. Cliff Bentz 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Bentz, McClintock, LaMalfa, 
Boebert, Duarte, Hageman, Westerman; Huffman, Peltola, Hoyle, 
Magaziner, Dingell, Porter, and Grijalva.
    Also present: Representatives Pfluger; and Beyer.

    Mr. Bentz. The Subcommittee on Water, Wildlife and 
Fisheries will come to order.
    Without objection, the Chair is authorized to declare a 
recess of the Subcommittee at any time.
    Good afternoon, everyone. I want to welcome our witnesses, 
Members, and our guests in the audience to today's hearing. The 
Subcommittee is meeting today to hear testimony on a hearing 
entitled, ``ESA at 50: The Destructive Cost of the ESA.''
    I 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).
    I also ask unanimous consent that the gentleman from Texas, 
Mr. Pfluger, be allowed to participate in today's hearing.
    Without objection, so ordered.
    Mr. Huffman. Mr. Chairman, I wonder if I could ask 
unanimous consent that Representative Don Beyer of Virginia 
have permission to sit on the dais and participate today.
    Mr. Bentz. So ordered.
    Mr. Huffman. Thank you.
    Mr. Bentz. I now recognize myself for an opening statement.

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

    Mr. Bentz. The purpose of today's hearing is to review and 
acknowledge the destructive cost of the Endangered Species Act. 
Witnesses will testify to the costs the ESA imposes upon 
communities, states, ratepayers, businesses of all sizes, other 
species deserving protection, the environment, our children, 
and the infirm, among many others.
    Some here today will no doubt ask and possibly even 
suggest, given its incredible cost, why hasn't Congress 
repealed this law? The answer is that we all want species to be 
safe. We all want to avoid causing species to go extinct. And 
the ESA was a well-intentioned law attempting to do this.
    But after 50 years of the ESA and untold billions in 
expenditures paid many times by small communities and families, 
and not the nation, and with questionable benefits, it is 
definitely time to come up with a better plan. Today, we will 
bring the cost of this law to the attention of the nation. Soon 
we will introduce amendments to the Act that will improve its 
protections of species without destroying people and 
communities, without costing more money than we can possibly 
find to address these issues.
    I am absolutely certain we will hear from some folks across 
the aisle in an effort to hide or justify the horrific cost of 
this law, that today's hearing is simply another effort to get 
rid of the ESA. It is not. But it most certainly is an attempt 
to understand the ESA's cost. It is absolutely possible to 
question the cost of the ESA without questioning the need to 
protect species, even though some here will say otherwise.
    Cost does matter. Money isn't free, and understanding what 
we get for what we spend is always relevant. And there are 
certainly costs other than just money that will be addressed 
today.
    Here are some of the costs the ESA imposes that our 
witnesses will review this afternoon:
    (1) the cost incurred by agencies implementing the ESA.
    (2) the cost incurred by many species, as water is taken 
from them and given to others because of the ESA.
    (3) the cost of the nation of extraordinarily amounts of 
delay and astounding amounts of money spent on the ESA in the 
context of NEPA compliance.
    (4) the cost of community destruction as activities such as 
logging and forest management are stopped by the ESA.
    (5) the cost of the young and the old as they breathe air 
heavy with smoke from wildfires as they ravage our fuel-
burdened forests kept that way because of lawsuits and 
bureaucracy, creating a virtual, veritable Gordian knot of 
astounding complexity.
    (6) the insane cost of ESA mitigation credits, a 
Jabberwocky construct that is driving the cost of electrical 
transmission, and thus the cost of rate and tax payers across 
the West, through the roof, and this is not to mention the 
insane impact this is having on land use and land values.
    (7) the cost to ratepayers along the Columbia River far 
into the billions as almost a billion per year of ratepayer 
money is being spent on fresh water, when the focus should be 
on the sea.
    (8) the cost of flood insurance which, because of lawsuits 
based on the ESA, will soon skyrocket in price and time taken 
to issue such insurance, as FEMA becomes the new frontier of 
ESA compliance.
    I could easily go on, but I will leave it to other Members 
to raise the additional costs in their districts of the ESA.
    What we do know is that the ESA is failing in one of its 
core missions: recovering endangered and threatened species. As 
many here know, only 3 percent of listed species have been 
delisted. Yet, our constituents are being asked to pay billions 
of dollars each year in both direct and indirect costs to 
subsidize failed species conservation actions.
    Worst of all, the ESA's implementation desensitizes private 
landowners who are working hard to benefit species 
conservation, like my constituent Sean Vibbert, who grows 
wildflowers that create habitat for monarch butterflies. For 
example, the U.S. Fish and Wildlife Service estimates that 
recovering the Oregon spotted frog, the species affecting Mr. 
Vibbert's operation, will cost $2.8 billion. That is the 
estimate. I will say again, $2.8 billion for one species. How 
useful is a recovery plan when the odds of it being implemented 
at that cost are so slim?
    The issue before us today is not whether these species 
should be protected. The issue is are the management decisions 
made by these services the right ones, and are the costs 
associated with these decisions worth it, both for the species 
conservation and the costs imposed on our constituents?
    Take the case of the northern spotted owl in Oregon, where 
studies have shown the listing of that owl and its 9.6 million 
acres of associated critical habitat have caused the loss of 
32,000 timber jobs. The cost we are examining today, as 
indicated previously, are not just the businesses, but also the 
cost to our constituents and other species. The status quo is 
not good enough, nor is it sustainable.
    I am certain we will hear today that there is nothing to 
see here, and that even to raise these issues is to attack 
species. I assure you, questioning what we are having to pay 
and who is having to pay it for such modest benefit in 
recovered species is exactly what my constituents want me to 
do. And I believe this hearing will go a long way in addressing 
this concern.
    With that, Mr. Huffman.

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

    Mr. Huffman. Thank you, Mr. Chairman, and good afternoon, 
everyone. Happy 50th anniversary to the Endangered Species Act, 
for those who celebrate.
    I think we should be celebrating the ESA. This is a 
historic and popular conservation law which has prevented 
countless species from going extinct. It has also enabled the 
recovery of some iconic species like the bald eagle and the 
humpback whale. But so far this year, my Republican colleagues 
have been much more interested in using the platform of this 
Committee to villainize, attack, and misinform people about the 
ESA.
    It is almost hard to believe that 50 years ago this 
landmark legislation was spearheaded by Republican 
environmental champions. Today, Republican environmentalists 
are the most critically endangered species in politics. And you 
don't have to take my word for it. You can just look at what 
happened last week. There was a Republican amendment that they 
tried to pass to the NDAA involving the ESA. The Department of 
Defense didn't ask for it, didn't need it, didn't want it. 
However, all but two Members, two Republican members of the 
House Natural Resources Committee, voted to categorically 
exclude the Department of Defense and all of their defense 
contractors from the Endangered Species Act without so much as 
having a hearing on the radical language that would have gutted 
a big part of the ESA. Thankfully, it failed.
    But the consequences of what Team Extreme tried to do last 
week to the ESA are staggering. There are 400 ESA-listed 
species on military lands. There are 60 species found only on 
military lands. Exempting DOD could push dozens of endangered 
species toward extinction. And fortunately for those species, 
25 Republicans joined Democrats in defeating that terrible 
amendment, but all but two Republicans on this Committee, 
including Chair Westerman and Chair Bentz, voted for it.
    And now we hear about a new House GOP working group to 
modernize the Endangered Species Act. Talk about euphemisms. 
Look at how they vote. That is what they want to do. And today, 
Team Extreme is at it again.
    We can expect to hear the usual anti-ESA tropes in this 
hearing, like how threatened and endangered species, not 
climate change, are responsible for wildfires and drought in 
the West. We will also hear how the ESA is Hotel California, 
where species check in but never leave, never get off the list.
    If you want to find an actual problem with the Endangered 
Species Act, we should be talking about listing, not delisting, 
because the fact is political opposition to listing and the 
lack of agency resources for listing means that species are 
often listed too late in the game, when their population has 
declined so much that they have to remain on the endangered or 
threatened list because they face such an uphill battle to 
recovery.
    We will also hear tales today, tall tales, about how the 
ESA stops vital projects from moving forward. We have to look 
at the facts, folks, not the rhetoric. The reality is, 
according to a scientific review of over 88,000 ESA 
consultations over 7 years, zero projects were stopped, and 
zero projects were extensively altered as a result of jeopardy 
or adverse modification findings.
    So, when you look past all the fake narratives and anti-ESA 
rhetoric, you discover ESA is actually sensible, it is quite 
flexible, and it is reasonable.
    Meanwhile, we have a biodiversity crisis. Too many species 
are on the brink of extinction. We don't have time for the 
Republican Majority to hold hearings that scapegoat imperiled 
species and pretend like climate change doesn't exist. These 
species are going extinct. Three of them go extinct every hour. 
By the end of our opening statements, we will have 10 minutes 
until another species is driven to extinction.
    Now, the ESA has kept 99 percent of listed species from 
going extinct. It is our strongest backstop against extinction 
for myriad species. And the simple truth is that extreme MAGA 
Republicans want to dismantle it. The only hearings they have 
held in this Congress have been about weakening and eliminating 
ESA protections, including delistings before a science-based 
decision can even be made. And last week, of course, they tried 
to write a huge part of the U.S. economy out of the Endangered 
Species Act categorically.
    This landmark law has given us a shining example of species 
recovery. If we funded it right and supported collaborative 
efforts, we could prevent a lot of biodiversity loss. Imagine 
if we prioritized wildlife and habitat as much as we prioritize 
subsidizing the fossil fuel industry. Last year, the United 
States offered over $22 billion in subsidies to the fossil fuel 
industry. If we put half that much into ESA implementation, 
into protection of wildlife and critical habitat, imagine the 
kind of world that we could have, and imagine fights and 
political theater like this that could be avoided.
    With that, Mr. Chairman, I yield back.
    Mr. Bentz. I now recognize the Full National Resources 
Committee Chairman, Mr. Westerman, for his opening statement.

  STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF ARKANSAS

    Mr. Westerman. Thank you, Chairman Bentz, for holding this 
hearing, and thank you, Ranking Member Huffman, for your much-
anticipated opening remarks. I was expecting to hear most of 
those things that you said. And I would ask the question: What 
is so radical about taking a fresh look at a law that is 50 
years old that was put in place by Republicans and championed 
by Republicans?
    And you are looking at a Republican that doesn't want to do 
away with the ESA, he wants to make the ESA work, wants to make 
it something that is effective, that really is about helping 
species, helping biodiversity, and improving it. And as a 
forester, I can tell you one of the biggest things we could do 
would be to work on healthy habitat that promotes great 
biodiversity, that promotes the welfare of endangered species. 
And it is really the only thing we can do.
    We have a bill that Representative Dingell, who just 
stepped out, will be working on. The Democrat version is 
Recovering America's Wildlife Act. We are going to call our 
version Restoring America's Wildlife Habitat Act, because when 
it comes to wildlife, really, the only thing you can do is 
restore the habitat.
    And we are seeing thousands, if not millions, of acres of 
habitat on Federal lands that is being mismanaged, that is 
being destroyed by catastrophic wildfire, that is being 
destroyed by insects and disease. And if we really cared about 
endangered species, we would truly care about the forest 
habitat, the water habitat, the wetlands, and the ecosystems 
that promote good habitat and species recovery.
    And I think it is fair that we look back on a bill that is 
50 years old. We celebrate the victories of it. We have a 
strong population of bald eagles. We have grizzly bears. We 
have wolves that should be off the Endangered Species Act. That 
is not me saying that, that is the Obama administration and 
other administrations that tried to delist the wolf, but they 
are still on the list.
    So, I think it is our responsibility, as stewards of the 
American taxpayers' dollar, as stewards of policy, to take a 
fresh look at the ESA, and let's go back and look at the 
purpose of the ESA. And I quote when it was established: ``The 
purpose of this Act are to provide a means whereby the 
ecosystems upon which endangered species and threatened species 
depend may be conserved.'' It didn't say ``preserved,'' it said 
``conserved'' and that is a valid point.
    ``To provide a program for the conservation of such 
endangered species and threatened species, and to take such 
steps as may be appropriate to achieve the purposes of the 
treaties and conventions set forth.'' Unfortunately, litigants 
now use the ESA as a control tactic to preserve lands, or try 
to preserve lands and pursue radical agendas. I heard the word 
``radical'' and ``extreme.'' Well, there is not anything much 
more radical and extreme than to take well-meaning laws and 
misuse them and misapply them that are actually defeating the 
purpose of the law in the first place.
    Instead, we should be pursuing a noble conservation 
mission. And today's hearing is about examining the cost 
associated with the ESA. And I don't want to make it just about 
the financial cost, but it is also the cost when we lose 
species, when we tie up resources inside our Federal agencies 
that could be used in going toward actually helping endangered 
species, but they are tied up in the regulatory and the 
litigation process, and not able to do the work and the jobs 
that many of them went to college and made their career path to 
go out and help with endangered species.
    For these and many other reasons, the House Committee on 
Natural Resources Republicans, and I would invite any Democrat 
that wants to join, we are partnering with the Congressional 
Western Caucus and Chairman Dan Newhouse to lead a working 
group of Members from across the country that will engage with 
local communities that are most impacted by the ESA, and 
develop policy proposals to modernize and renew the ESA for the 
21st century.
    And, again, I would hope this would be a bipartisan effort. 
It is not because we haven't made this open to our friends 
across the aisle. It is because they don't want to be part of 
the group. This work is absolutely necessary for the future of 
species conservation and our constituents because the status 
quo just isn't good enough anymore.
    Again, I want to thank Chairman Bentz and thank our 
witnesses for being here today. I look forward to asking 
questions of our witness after hearing their testimony, and I 
yield back.

    Mr. Bentz. Thank you, Mr. Chairman. I now recognize the 
Full Natural Resources Committee's Ranking Member, Mr. 
Grijalva, for his opening statement.

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

    Mr. Grijalva. Thank you, Mr. Chairman, and thank the 
Ranking Member.
    Today, as the Ranking Member noted, some of us are 
celebrating 50 years of the Endangered Species Act. Others are 
trying to gut it. And the Endangered Species Act is supported 
by over 90 percent of the American people. So, you would think 
our Committee could come together with the shared goal of 
recovering and conserving our shared wildlife heritage for 
current and future generations, just like Congress did 50 years 
ago for the original ESA, with our late friend, John Dingell, 
leading the efforts in this House of Representatives.
    Fifty years ago, when the Endangered Species Act was 
enacted, we knew far less about our country's biodiversity. 
Most people were unaware of how quickly our climate would 
change from the burning of fossil fuels, but the ESA was ahead 
of its time. Today, we are grappling with the consequences of 
our own actions. We are now facing unprecedented rates of 
global warming, habitat destruction, and degradation, and our 
world is at the risk of losing 1 million species.
    Today, we ask our colleagues across the aisle what 
modernization of the ESA looks like. They don't have good 
answers. I think we should focus on the goal of recovery. We 
are still behind in developing recovery plans, and many species 
get less than $1,000 per year for recovery efforts.
    We have drafted the Extinction Prevention Act to provide 
funding for some of those underfunded, most imperiled species. 
And last year, House Democrats secured $125 million for species 
recovery in the Inflation Reduction Act. Not one Republican 
voted for the bill, although they have been taking credit for 
the projects lately.
    Instead of wringing our hands or chipping away at ESA's 
protections and then complaining about that it is not working, 
Congress should do more of what it did in the IRA. We should 
invest significantly in species conservation, set our visionary 
wildlife conservation laws, and use the ESA as an example of 
success.
    And with that, Mr. Chairman, I yield back.
    Mr. Bentz. I will now introduce our witnesses.
    Ms. Janet Coit, Deputy Administrator for the National 
Oceanic and Atmospheric Administration in Washington, DC; the 
Honorable Martha Williams, Director of the U.S. Fish and 
Wildlife Service in Washington, DC; Mr. Jonathan Wood, Vice 
President of Law and Policy at the Property and Environment 
Research Center in Bozeman, Montana; Mr. Daniel Ashe, CEO of 
the Association of Zoos and Aquariums in Silver Spring, 
Maryland; Mr. Justin Jahnz, CEO of East Central Energy in 
Braham, Minnesota; and Mr. Sean Vibbert, owner of the Obsidian 
Seed Company in Madras, Oregon.
    Let me remind the witnesses that under Committee Rules, you 
must limit your oral statements to 5 minutes, but your entire 
statement will appear in the hearing record.
    To begin your testimony, please press the ``talk'' button 
on the microphone.
    We use timing lights. When you begin, the light will turn 
green. When you have 1 minute remaining, the light will turn 
yellow. And 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 Deputy Administrator Coit for 5 minutes.

  STATEMENT OF JANET COIT, ASSISTANT ADMINISTRATOR, NATIONAL 
  OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF 
                    COMMERCE, WASHINGTON, DC

    Ms. Coit. Good afternoon, Subcommittee Chair Bentz, Ranking 
Member Huffman, Full Committee Chair Westerman, Full Committee 
Ranking Member Grijalva, and members of the Subcommittee. Thank 
you for the opportunity to testify today. My name is Janet 
Coit, and I am the Assistant Administrator for NOAA Fisheries.
    Throughout my career, the Endangered Species Act, or ESA, 
has been a common thread. In the mid-1990s I was counsel to the 
U.S. Committee on Environment and Public Works, working for the 
late, great Senator John Chafee, where I focused on 
reauthorization of the ESA. My work is coming full circle, as I 
am now the head of NOAA Fisheries, one of the agencies 
responsible for implementing ESA.
    The Endangered Species Act is one of the foundational laws 
that underpins the critically important work that NOAA 
Fisheries does to recover marine and anadromous species while 
supporting economic and recreational opportunities. As you 
noted, this year marks ESA's 50th anniversary, and the law's 
purpose and goals remain as relevant today as they were in 
1973.
    The ESA has been remarkably successful in preventing the 
extinction of 99 percent of the species listed under the Act, 
recovering some of America's most iconic species and putting 
many on the road to recovery. By promoting conservation of 
habitats and preventing the loss of biodiversity, the ESA has 
provided myriad benefits across the nation and beyond.
    Over the past 50 years, the ESA has led to innovation and 
conservation to support species and the habitats on which they 
depend. NOAA Fisheries is committed to evolving in response to 
stakeholder and species needs to implement ESA more effectively 
and efficiently. Importantly, we continue to make improvements 
to the way we analyze and implement the law, especially to 
ensure that we are meeting current challenges such as how the 
impacts of climate change affect species and habitats.
    Climate change poses an ever-increasing threat to native 
biodiversity, and is accelerating the extinction crisis. 
Scientists estimate that as many as 1 million species are in 
danger of extinction, many within decades. We must continue to 
expand our scientific understanding and bring focused attention 
and investments in order to protect and recover listed species 
and their habitats before it is too late. No one wants to see 
marine mammals, fish, sea turtles, corals, or other creatures 
go extinct. Not on our watch.
    To that end, the Bipartisan Infrastructure Law and 
Inflation Reduction Act are providing historic levels of 
funding towards state, tribal, and local efforts to conserve 
habitats that support listed species. With new funding under 
these laws, NOAA is able to catalyze habitat restoration 
projects that conserve fisheries and protected species, while 
also strengthening the resilience of coastal ecosystems and 
communities. Sustained investments like these are critical to 
ensure the future of diverse and productive ecosystems.
    I have been fortunate over the past couple of years to 
witness firsthand some of the work of our NOAA scientists and 
fishery managers. While in California last year, I visited our 
Southwest Fisheries Science Center, where NOAA scientists and 
partners are studying endangered white abalone. In 2019, 
captive-bred juvenile white abalone were released for the first 
time into coastal waters off northern California.
    Similar efforts are underway in Florida, where they are 
looking at ways to breed and outplant more resilient coral 
species. Last year, I visited our partners at Mote Marine 
Laboratory, where scientists are exploring options to scale up 
recovery efforts for critically endangered corals, some of our 
most productive ecosystems throughout Florida and the 
Caribbean.
    And we are seeing endangered marine mammals like the 
Hawaiian monk seal begin to rebound. A recent population 
assessment shows a 2 percent increase annually since 2013, 
reversing at least six decades of steep population decline.
    While we are acknowledging 50 years of successes, there is 
much more work to do. Climate change and other human and 
environmental impacts continue to threaten protected species 
and make recovery even more challenging. When I look ahead at 
the next 50 years, I envision new science, technological 
advances, and stronger partnerships aimed at conserving listed 
species and the network of habitats needed to preserve 
biodiversity. The ESA will continue to provide a critical 
safety net to our nation's fish and wildlife for years to come.
    But to ensure success, we must both work together with 
states, tribes, and a broad array of partners, and provide 
sufficient resources now and into the future. I am proud of the 
work NOAA Fisheries has done over the last 50 years to uphold 
the Endangered Species Act and to put listed species on the 
road to recovery. I look forward to working with you and others 
to chart a successful route through the challenges ahead. I 
know we all feel a sense of urgency and responsibility, and I 
am happy to be here, and would be pleased to answer your 
questions. Thank you.

    [The prepared statement of Ms. Coit follows:]
      Prepared Statement of Janet Coit, NOAA Fisheries Assistant 
                             Administrator

    Chairman Bentz, Ranking Member Huffman, and members of the 
Subcommittee, thank you for the opportunity to testify. The National 
Oceanic and Atmospheric Administration (NOAA) is responsible for the 
stewardship of the nation's living marine resources and their habitat. 
Backed by sound science and an ecosystem-based approach to management, 
NOAA Fisheries provides vital services for the nation, including 
management and sustainment of our fisheries, ensuring safe sources of 
seafood, and the recovery and conservation of protected species and 
healthy ecosystems. 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 
Endangered Species Act (ESA), NOAA Fisheries works to recover marine 
and anadromous species while preserving robust economic and 
recreational opportunities. There are more than 160 endangered and 
threatened marine and anadromous species under NOAA's jurisdiction. Our 
work includes: listing species under the ESA, monitoring species 
status, designating critical habitat, implementing actions to recover 
endangered and threatened species, consulting with other federal 
agencies, conserving marine mammals, developing ESA policies, guidance, 
and regulations, and working with partners to conserve and recover 
listed species. NOAA Fisheries shares the responsibility of 
implementing the ESA with the U.S. Fish and Wildlife Service.
    This year marks the 50th anniversary of the ESA. Recognizing that 
the value of our natural heritage is incalculable, Congress enacted the 
ESA nearly unanimously in 1973, in acknowledgement of the broad public 
support for the prevention of species extinction. The ESA is the 
nation's foremost conservation law for protecting wildlife and plants 
in danger of extinction. It plays a critical, science-based role in 
preventing the extinction of imperiled species, promoting their 
recovery, and conserving their habitats. Its purpose and goals remain 
as relevant today as they were 50 years ago, or perhaps more so. Today, 
the impacts of climate change pose an ever-increasing threat to native 
biodiversity. Scientists estimate that as many as one million species 
are threatened with extinction.
    The ESA has been remarkably successful in preventing the extinction 
of 99% of the species listed under the Act, recovering some of 
America's most iconic species, and putting many on the road to 
recovery. From Eastern Pacific gray whales to humpback whales along the 
Atlantic coast, NOAA Fisheries, in carrying out its statutorily 
mandated responsibilities pursuant to the ESA, has been integral to 
species recovery and efforts to remove species from the Threatened and 
Endangered Lists.
    Recovering species can provide economic opportunities such as 
enhanced fishing and recreating opportunities, wildlife-based tourism, 
and responsible wildlife watching. NOAA Fisheries protects marine 
species while supporting ocean-based economic growth by providing 
scientific advice on the impacts to protected marine species and their 
habitat from near-term and long-term effects of competing ocean uses.
    To continue to carry out ESA's important goals, NOAA Fisheries 
works closely with its many partners, including states, tribes, other 
federal agencies, industries, and conservation organizations in its 
efforts to conserve and recover ESA-listed species. These efforts 
include implementing our ``Species in the Spotlight'' initiative, which 
we began in 2015 to bring greater attention to, and leverage resources 
and partnerships to save, nine of our highly at-risk species. The nine 
species in the spotlight are: Atlantic salmon, Cook Inlet beluga whale, 
Hawaiian monk seal, Sacramento River winter run Chinook salmon, 
southern resident killer whale, the Pacific leatherback turtle, central 
California coast coho salmon, North Atlantic right whale, and white 
abalone. The Species in the Spotlight Program has been tremendously 
successful in leveraging new partnerships and resources for 
conservation and recovery of these species.
    Through use of our Section 6 grants, we have also partnered with 
many coastal states to support management, research, monitoring, and 
outreach activities that have direct conservation benefits for listed 
species under the ESA within those states. Through this grant program, 
states have undertaken critical management and recovery activities and 
conducted vital research for endangered species as varied as white 
abalone, Atlantic and shortnose sturgeon, marine turtles, and Hawaiian 
monk seals. In addition, the Bipartisan Infrastructure Law and 
Inflation Reduction Act are providing historic funding to support 
state, tribal and local efforts to conserve habitats that support 
listed species. With funding provided under these laws, we are able to 
support and catalyze fish passage projects that restore access to 
healthy habitat for migratory fish, habitat restoration projects that 
support fisheries and protected species while also strengthening the 
resilience of coastal ecosystems and communities, and capacity building 
and on-the-ground restoration projects that advance the coastal habitat 
restoration priorities of tribes and underserved communities.
    We also continue to seek science-based innovations to address 
threats to species and support their recovery in ways that can minimize 
risks to species and costs to industry. One such new initiative--the 
Advanced Sampling and Technology for Extinction Risk Reduction and 
Recovery--focused on reducing extinction risk and supporting recovery 
of protected species through technological innovation. New and better 
data is also critical to our efforts.
    Our work with partners to conserve and recover threatened and 
endangered species is ongoing and evolving. Over the past few decades, 
we have improved our implementation of the statute, which has resulted 
in the recovery of species and prevention of species extinctions. We 
continually seek to expand our partnerships and cooperative 
conservation efforts, and improve and strengthen our implementation of 
the ESA to bring greater benefits to listed species and surrounding 
communities. For instance, a recent NOAA partnership with the Federal 
Emergency Management Agency has provided communities with incentives 
for taking local actions that both mitigate flood risk to homeowners 
and businesses, and protect ESA-listed species through preservation of 
the natural and beneficial functions of floodplains, resulting in lower 
flood insurance premiums and reduced property damage and loss from 
flooding.
    Over the past 50 years, the ESA has led to innovation, conservation 
and science to support species and the habitats on which they depend. 
Healthy ecosystems support fisheries, tourism and community health. By 
promoting conservation of habitats and preventing the loss of 
biodiversity, the ESA has provided myriad benefits across the nation, 
and beyond. The United States is a model for others as we seek to 
support economic development while ensuring the continued existence of 
the species, great and small, with which we share our earth.
Conclusion

    NOAA is proud to continue to lead the world in conducting ocean 
science, serve the nation's coastal communities and industries, ensure 
responsible stewardship of our ocean and coastal resources, and foster 
economic growth and opportunity by recovering marine resources to 
sustainable levels and providing scientific advice on the impacts to 
protected marine species and their habitat from near-term and long-term 
effects of competing ocean uses. 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 respond to your questions.

                                 ______
                                 

    Questions Submitted for the Record to Ms. Janet Coit, Assistant 
Administrator, National Marine Fisheries Service, National Oceanic and 
                       Atmospheric Administration

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

          Questions Submitted by Representative Gonzalez-Colon
    Question 1. NOAA's National Marine Fisheries Service has 
jurisdiction under the Endangered Species Act for seven species of 
threatened corals found in Puerto Rico's waters. Could you discuss some 
of the work your agency is conducting in Puerto Rico to protect and 
facilitate the recovery of these species of coral? Including through 
NOAA's Habitat Blueprint Framework and the Puerto Rico Northeast Marine 
Corridor and Culebra Island Habitat Focus Area--which I understand is 
one of only 11 Habitat Focus Areas established by NOAA across the 
nation.

    Question 2. In November 2020, NOAA proposed to designate critical 
habitat for five species of threatened Caribbean corals in waters off 
the coasts of southeastern Florida, Puerto Rico, the U.S. Virgin 
Islands, and Navassa Island. Similarly, in October 2022, NOAA proposed 
to designate critical habitat for the Nassau grouper in waters off 
these jurisdictions.

    Could you discuss the status of these proposed critical habitat 
designations for these species? When does NOAA expect to finalize and 
implement them?

    Question 3. On September 8, 2022, NOAA published a proposed rule to 
list the queen conch as a threatened species under the Endangered 
Species Act (ESA). When does NOAA expect to finalize this rule? And 
what sort of engagement has NOAA conducted with relevant stakeholders 
in Puerto Rico, particularly to address the concerns of commercial 
fishermen on the Island who rely on the queen conch fishery for their 
livelihoods?

    Question 4. Could provide status report on the following listed 
species found in Puerto Rico under NOAA's jurisdiction, including, if 
available, how much NOAA has spent to support each species' recovery 
and conservation on the Island since Fiscal Year 2018?

    Question 5. Could you submit a status report on the following 
listed species found in Puerto Rico under NOAA's jurisdiction, 
including how much NOAA has spent to support each species' recovery and 
conservation on the Island since Fiscal Year 2018?

    5a) Sea turtles: green sea turtle, leatherback sea turtle, 
hawksbill sea turtle

    5b) Nassau grouper

    5c)  Corals: elkhorn coral, staghorn coral, boulder star coral, 
mountainous star coral, lobed star coral, rough cactus coral, and 
pillar coral

                                 ______
                                 

    Mr. Bentz. Thank you, Assistant Administrator Coit.
    I now recognize Director Williams for 5 minutes.

STATEMENT OF THE HON. MARTHA WILLIAMS, DIRECTOR, U.S. FISH AND 
WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, 
                               DC

    Ms. Williams. Good afternoon, Chairman Bentz, Ranking 
Member Huffman, Full Committee Chair Westerman, and members of 
the Subcommittee. I appreciate the opportunity to testify 
before you today.
    We need the Endangered Species Act now, more than ever. 
Unprecedented and prolonged heat in the Southwest; ocean 
temperatures in the 90s off of Florida; flooding and extreme 
weather in places not used to it like Vermont, Pennsylvania, 
and New Hampshire; drought, the likes of which we have not seen 
before in the West; wildfires raging in Canada sending 
unhealthy air into much of our country, these are bad for 
people, but they are even worse for populations of wildlife, 
fish, and plants that have adapted over millennia to certain 
ecosystems.
    Climate stressors, degraded and fragmented habitats, 
invasive species, and disease are pushing to the brink of 
collapse some of the very symbols that set us apart as a 
nation, our rich diversity of wildlife, fish, and plants. And 
yet I have hope for the future. I am hopeful, because where you 
give nature a chance, it has a remarkable ability to heal.
    Thanks to the Endangered Species Act, sea turtles return 23 
years or more after they hatch, coming in off of the ocean by 
moonlight to lay over 100 eggs and return to the sea that same 
night. After over 100 years of absence, salmon can spawn in a 
stream after removing a barrier to their return. Wood ducks can 
thrive because we work together to plant rice. A child can 
still see the wonder of a firefly, and cow elk can chatter to 
each other on a cold winter morning.
    I am hopeful because as each of us are exposed to these 
examples, we can't help but be in awe of nature. At our very 
core, Americans care about the ecosystems that serve as 
resilience and buffer against storms that help keep our water 
clean, that provide our food, and the pollinators that are key 
to its production.
    I am hopeful because when we are down, when we need it 
most, we turn to nature, as in the pandemic, when so many 
reconnected with the outside world.
    I am hopeful because of the many partnerships catalyzed by 
the Endangered Species Act, even those centered around the 
species that are so controversial. Without the Endangered 
Species Act, I wouldn't have this hope.
    Fifty years ago, in 1973, a nearly unanimous Congress 
passed this incredibly consequential bipartisan Act, which 
President Nixon signed into law. The Endangered Species Act was 
a response to a ground swell of public concern over the steady 
and precipitous decline of wildlife and habitat. Unregulated 
market hunting wiped out the passenger pigeon, a species that 
once numbered in the billions. Other species nearly face 
similar fates. Southern sea otters were hunted to near 
extinction during the fur trade. Bison were decimated, and many 
populations of migratory birds were drastically reduced, killed 
for their feathers. Raptors like the peregrine falcon and our 
nation's symbol, the bald eagle, came close to extinction due 
to toxins in the environment.
    Congress enacted the Endangered Species Act because when we 
lose a species we become poorer as a country. The law states 
the policy of Congress that all Federal departments and 
agencies seek to conserve listed species and use their 
authorities to further the purposes of the ESA. It does not 
grant discretion to give up on a species and allow it to blink 
out. The ESA serves as an emergency room for America's fish, 
wildlife, and plants. It stems extinctions. Almost all of the 
species protected by the ESA are still with us today.
    The ESA, too, stabilizes hundreds of species in decline. We 
all seek to move species from the emergency room to full 
recovery. Some require more effort and tools to get there. 
Federal agencies and project proponents engage in thousands of 
consultations each year to ensure that their actions won't 
jeopardize a species' existence.
    Through the combination of incentives and regulation, the 
ESA serves as a powerful catalyst to collectively bring all 
that we can to protect and conserve and move species through 
the continuum of recovery. It encourages partnerships between 
Federal Government, state, tribal, and local governments, 
private landowners, conservation organizations, and other 
interested parties. It provides flexibility for partners to 
work on voluntary conservation agreements, and we recognize 
that those partnerships are critical to the long-term 
conservation of our species.
    Moreover, Federal agencies and our partners are continually 
evolving and improving how we implement this law for people and 
for the species. No doubt this immense investment of effort, 
collaboration, and dedication underpins the Endangered Species 
Act. This work is done day in and day out, year after year, and 
is essential for conserving our natural heritage for the 
future.
    I look forward to working with this Committee, and I am 
here to answer any answer any questions you may have. Thank 
you, Chair.

    [The prepared statement of Ms. Williams follows:]
Prepared Statement of Martha Williams, Director, U.S. Fish and Wildlife 
                  Service, Department of the Interior
Introduction

    Good afternoon, Chairman Bentz, Ranking Member Huffman, and Members 
of the Subcommittee. I am Martha Williams, Director of 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 the Endangered Species Act (ESA or the Act).
    The Service's mission is working with others to conserve, protect, 
and enhance fish, wildlife, plants, and their habitats for the 
continuing benefit of the American people. For more than 150 years, the 
Service has collaborated with partners across the country and around 
the world to carry out this mission.
    Congress directed the Secretaries of the Interior and Commerce to 
implement the ESA, and the Service takes on that role for the 
Department. The ESA is a cornerstone of the Service's mission. Through 
this law, Congress set a public policy to address the loss of 
biodiversity and prevent species extinctions. The ESA turns 50 this 
year. A look back at our country's accomplishments under the Act 
demonstrates that the ESA achieves its fundamental purpose. Moreover, 
the Federal government and its partners are continually evolving and 
improving how we implement the law for people and species. The ESA 
remains as important today as it was when it was enacted, arguably even 
more so.
    The ESA's history, and what led Congress to enact it nearly 
unanimously and President Nixon to sign it into law, provides context 
for both how we implement it now and for its future. The ESA built upon 
previously enacted laws like the Lacey Act, Migratory Bird Treaty Act, 
Pittman-Robertson Act, National Wildlife Refuge Administration Act of 
1966, Endangered Species Preservation Act of 1966, and Endangered 
Species Conservation Act of 1969. A groundswell of public concern over 
the steady and precipitous decline of wildlife and habitat from 
overharvest and habitat loss and degradation catalyzed the ESA. In 
addition to recognizing the decline of species, these laws considered 
the migratory nature of many species and how conservation in one part 
of a species' range might be ineffectual without similar efforts in 
other areas of the species' range.
    From the founding of the United States through the enactment of the 
ESA in 1973, a number of species were reduced to extinction. A notable 
example is the extinction of the migratory passenger pigeon, a species 
that once numbered in the billions and was thought to be an unlimited 
food resource that could never be extinguished. Although local 
protective laws were adopted as the species' severe decline became 
clear in the latter 1800s, habitat destruction and commercial hunting 
eventually eliminated wild passenger pigeons. The last known individual 
died in a zoo in 1914. Similarly, populations of birds like storks, 
herons, and whooping cranes were drastically reduced due to hunting for 
their plumage, as well as widespread habitat loss. Raptors like bald 
eagles and peregrine falcons declined due to toxins in the environment.
    Mammals like sea otters, bison, bears, and wolves were reduced 
through hunting or predator control efforts to remnant populations in 
the lower 48 States.
    Over time, and through the actions of citizens, there was a growing 
understanding that the effects of generations of unregulated take and 
ecosystem degradation led to species extinctions, and that the loss of 
biodiversity harms our country. Growing public awareness and action led 
to Congressional action. Not only was the ESA an important step forward 
for the United States, but it is also one of the most comprehensive 
wildlife conservation laws enacted by any Nation in the world.
    At its core, the purpose of the ESA is to conserve imperiled 
species and the ecosystems upon which they depend. Congress noted in 
the findings of the ESA that: (1) various species of fish, wildlife, 
and plants in the U.S. have been rendered extinct as a consequence of 
economic growth and development untempered by adequate concern and 
conservation; (2) other species of fish, wildlife, and plants have been 
so depleted in numbers that they are in danger of or threatened with 
extinction; (3) these species of fish, wildlife, and plants are of 
esthetic, ecological, educational, historical, recreational, and 
scientific value to the Nation and its people; and (4) the United 
States has pledged itself as a sovereign State in the international 
community to conserve to the extent practicable the various species of 
fish or wildlife and plants facing extinction, pursuant to relevant 
international agreements.\1\ The ESA requires our Nation to be 
cognizant of the effects of human activities on imperiled species.
---------------------------------------------------------------------------
    \1\ The Endangered Species Act of 1973 (16 U.S.C. Sec. Sec. 1531).
---------------------------------------------------------------------------
    Looking forward, the ESA is an essential tool in conserving 
America's wildlife heritage. The law enables us to prevent catastrophic 
harm to species and provides the foundation to do the long work of 
redressing past harms to species. The ESA has been successful in 
stemming the tide of species extinctions. Almost every single species 
that has been protected by the ESA is still with us today, and hundreds 
are on the path to recovery. However, the threats to biodiversity 
conservation and to maintaining the rich array of fish, wildlife, and 
plants that help make our Nation so special have only increased. It 
takes a collaborative, and, most often, long-term effort to create the 
right conditions for recovery. The Service and our partners do that 
work in the context of economic and communities' needs. The law allows 
for a flexible, measured approach that incorporates species protections 
in the course of development activities that help our economy prosper. 
It is important to note the value of the protection of our precious 
wildlife and ecosystems, which are treasured national resources and 
economic assets in their own right. Successful recovery of species, and 
conservation of biodiversity and the ecosystems that support 
biodiversity, benefit our society in many ways. These benefits range 
from tourism to natural ecosystem services such as pollination, water 
filtration, or helping protect coastal communities from storm surges.
Discussion of the Endangered Species Act

    The ESA provides a multi-faceted and well-outlined system for 
protecting our Nation's wildlife, ecosystems, and biodiversity. The Act 
has prevented the extinction of hundreds of species and continues to 
protect and preserve some of our Nation's most beloved animals and 
plants. The Act accomplishes this through science-based processes that 
identify species that are threatened and endangered. The Act identifies 
prohibitions for endangered species, which can be applied to threatened 
species through a 4(d) rule, and requires that Federal agencies both 
use their authorities to conserve listed species and ensure that their 
actions are not likely to jeopardize the continued existence of listed 
species or destroy or adversely modify their designated critical 
habitat.
    The Act also provides the basis to develop and implement a road map 
for recovery of each species. These processes occur day in and day out, 
year after year, and cumulatively have protected, stabilized, and 
recovered a myriad of species.
    For example, through the ESA, we have recovered our national 
symbol, the bald eagle. We have also recovered the American alligator, 
which after surviving for millions of years, became endangered due to 
market hunting and loss of habitat and required protection under the 
ESA. Each of these species is a part of their ecosystem, each with a 
unique biological community, performing services that are essential to 
our combined well-being. By conserving them, guided by the best-
available science, we help protect healthy air, land, and water for 
everyone. The ESA mandates or supports collaboration, rigorous science-
based processes, recovery of species, comprehensive environmental 
reviews, and ongoing commitment, all hallmarks of effective 
environmental conservation in the United States.
Collaboration
    A key component of the Service's work is to proactively conserve 
at-risk species before they require the protections of the ESA. This 
includes encouraging voluntary conservation, educating the public about 
wildlife, and monitoring species. Implementing conservation efforts 
before species are listed and their habitats become imperiled increases 
the likelihood that simpler, more cost-effective non-regulatory 
conservation options are available, and that conservation efforts will 
succeed. In other words, preventative care can be both less difficult 
and less expensive than emergency care of a species in many cases. 
Removing or reducing identified threats to a declining species can, in 
some cases, head off the need to list the species. States, which have 
primary jurisdiction over wildlife and plants before ESA listing, are 
critical partners in at-risk species conservation.
    Through innovation and building upon decades of experience 
implementing the ESA and conservation actions in general on the ground, 
the Service has developed a number of programs that encourage voluntary 
conservation of declining, candidate, or listed species. These 
voluntary programs also provide regulatory predictability to 
landowners. For example, Safe Harbor Agreements are voluntary 
agreements with the Service or National Marine Fisheries Service (NMFS) 
involving private or other non-Federal property owners whose actions 
contribute to the recovery of species listed as endangered or 
threatened under the ESA. In exchange for taking actions that 
contribute to the recovery of listed species on non-Federal lands, 
participating property owners receive formal assurances from the 
Service that if they fulfill the conditions of the Safe Harbor 
Agreement, the Service will not require any additional or different 
management activities by the participants without their consent. 
Candidate Conservation Agreements with Assurances (CCAAs) are voluntary 
agreements that provide incentives for non-Federal landowners to 
conserve unlisted species that either are, or are likely to become, 
candidates for listing in the future. For the length of the agreement, 
landowners agree to undertake specific activities that address the 
identified threats to the target species. In return for the 
participant's voluntary conservation action(s), the Service issues an 
Enhancement of Survival Permit under section 10(a)(1)(A) of the ESA. 
The permit, which goes into effect if the covered species is later 
listed as endangered or threatened under the ESA, provides assurances 
that, if the species is subsequently listed, the Service will not 
require the permittee to conduct any additional conservation measures 
without consent. Additionally, the permit authorizes a specific level 
of incidental take of the covered species, should listing occur.
    Partnerships are key to all the Service's work, including our 
proactive efforts. We prioritize coordination with the NMFS, other 
Federal, State, and local agencies, Tribes, nongovernmental 
organizations, companies, and private citizens. We work with our many 
partners to find collaborative solutions to help address any human-
wildlife conflicts or differing species needs. In some cases, these 
collaborative efforts are sufficient to prevent a species from being 
listed, such as in the case of the Virgin River spinedace in Arizona, 
Nevada and Utah, the New England cottontail in New York and Maine, and 
the Cumberland sandwort in Tennessee and Kentucky. Other examples of 
successful collaborations are relayed in the recovery section below.
Science-based Processes
    Implementation of the ESA is grounded in science. The Act requires 
the Service use the best available scientific and commercial data to 
make its determinations. For example, when the Service receives a 
petition to list or reclassify a species, we follow a comprehensive, 
science-based process mandated by the ESA and the Administrative 
Procedure Act to evaluate the petition and determine whether a species 
may warrant listing under the ESA. We (or the NMFS for most marine 
species) must make a finding within 90 days of receiving a petition (to 
the extent practicable) as to whether or not there is ``substantial 
information'' indicating that the petitioned listing may be warranted. 
If this preliminary finding is positive, a scientific status review is 
conducted to inform a 12-month finding (i.e., within 12 months of 
receipt of the petition). The 12-month finding may result in a ``not 
warranted'' finding, a ``warranted but precluded'' finding (meaning the 
species is identified as a candidate species but listing is precluded 
at that time by higher priority actions), or a ``warranted'' finding. 
If the Service makes a finding that listing is warranted, we publish a 
concurrent proposed rule to list the species under the ESA with a 
public comment period of 60 days. The ESA directs the Service to make a 
final listing determination within one year of the proposed rule.
    In addition to the petition process, under the ESA, the listing, 
delisting, and reclassification process may be initiated by a status 
review such as candidate assessment, five-year review, or discretionary 
review. Through these reviews, we may identify species for which the 
best scientific and commercial data available indicate that a proposal 
for listing or reclassification is appropriate, which would be 
available for public comment prior to a final rule.
    Public engagement, through the ability to petition the Service and 
the public comment process, is an important component of the ESA. The 
public may also request the Service hold a public hearing on a proposed 
rule.
    A species is added to the List of Endangered and Threatened 
Wildlife or the List of Endangered and Threatened Plants when it is 
determined, following a science-based process, to be an endangered 
species or threatened species because of any of the following factors: 
the present or threatened destruction, modification, or curtailment of 
its habitat or range; overutilization for commercial, recreational, 
scientific, or educational purposes; disease or predation; the 
inadequacy of existing regulatory mechanisms; other natural or man-made 
factors affecting its survival.
    Due to the number of petitioned species and the time required to 
carefully conduct our scientific assessments and public engagement 
process, the Service has a methodology for prioritizing status reviews 
and accompanying 12-month findings on petitions for listing species 
under the ESA. This methodology is intended to allow us to address our 
outstanding workload strategically, as our resources allow, and to 
provide transparency to our partners and other stakeholders as to how 
we establish priorities within our upcoming workload.
    The Service is also cognizant of the importance of tailoring 
protections for threatened species where appropriate. For example, when 
the Service is developing 4(d) rules for protecting threatened species, 
in some cases it is most appropriate to apply the full prohibitions 
afforded to endangered species under section 9 of the ESA, along with a 
standard set of exceptions for the Service, NMFS, and State agencies, 
to benefit threatened species. In other cases, the 4(d) rule may be 
tailored to provide additional exceptions, and we may incentivize known 
beneficial actions for the species or remove prohibitions on forms of 
take that are considered inconsequential to the conservation of the 
species. We put in place protections that will both prevent the species 
from becoming endangered and promote the recovery of species. The exact 
exceptions are science-based; they may depend on the species' biology, 
conservation needs, and threats affecting the species.
    In addition, for both endangered and threatened species, section 10 
of the ESA provides a permitting process to authorize take incidental 
to non-Federal activities. The cumulative effect of such take 
authorizations is considered through science-based processes to ensure 
it does not jeopardize the continued existence of the species. Permits 
may authorize take of listed species incidental to, and not the purpose 
of, an otherwise lawful activity, such as residential or commercial 
development. Non-Federal entities must develop a conservation plan that 
meets specific requirements as identified in the ESA, apply for an 
incidental take permit, and once issued, implement the project as 
specified in their permit. The Habitat Conservation Plan (HCP) program 
creates creative partnerships that allow public and private sectors to 
work with the Service to address listed and at-risk species in an 
ecosystem context, generate long-term commitments to conserve such 
species, and deliver regulatory assurances to project proponents. HCPs 
can also include conservation measures for vulnerable plant and animal 
species that are not listed federally as endangered or threatened.
    Effectively protecting listed species requires addressing their 
habitat needs, including designation of critical habitat. A critical 
habitat designation follows a science-based process to identify those 
specific areas that are essential for species conservation. Because 
habitat loss or degradation is frequently a key threat for many species 
that face extinction, a critical habitat designation is an important 
tool for species recovery. Critical habitat is also an important tool 
to educate the public and other Federal agencies regarding the 
conservation needs of listed species. Critical habitat designations do 
not create a park or preserve, nor do they affect activities by private 
landowners where there is no Federal funding or authorization involved. 
They only affect Federal agency actions or federally funded or 
permitted activities, as the ESA requires Federal agencies to ensure 
their actions are not likely to destroy or adversely modify designated 
critical habitat.
Recovery
    When a species is delisted due to recovery, it is an accomplishment 
of great magnitude. Successful delisting most often is the result of 
the sustained work of multiple partners to address threats and conserve 
ecosystems. This work provides benefits not only to the imperiled 
species but often also to other fish, wildlife, plants, and the public.
    The Service strives to recover listed species to delist or downlist 
them due to recovery. For most listed species, recovery is not a quick 
fix, and requires coordinated efforts and commitments from many 
stakeholders over many years. Thus far, more than 100 species of 
animals and plants have been delisted based on recovery or reclassified 
from endangered to threatened based on their improved conservation 
status. Many of these successes have resulted from collaboration with 
partners. For example, this June, the Service announced a final rule 
delisting the Okaloosa darter, in the Florida Panhandle, due to its 
recovery. Long-term partnerships with Federal, State, local and private 
citizens, contributed to the recovery of this fish, which was 
previously near the brink of extinction. A key partner in this effort 
was the U.S. Air Force, who worked to improve Okaloosa darter habitat 
on Eglin Air Force Base. Another example is in February 2023, the 
Service published a proposed rule to delist the wood stork, a large 
wading bird that inhabits a number of southeastern States. Since its 
listing in 1984, the breeding population has doubled, the number of 
nesting colonies have more than tripled, and their breeding range has 
expanded significantly. Other examples of recovered and delisted 
species include: the black-capped vireo, snail darter, Monito gecko, 
brown pelican, Borax Lake chub, Kirtland's warbler, interior least 
tern, San Benito evening primrose, Virginia northern flying squirrel, 
lesser long-nosed bat, Delmarva Peninsula fox squirrel, Hawaiian hawk, 
and desert milkvetch. Hundreds of species are stable or improving due 
to the collaborative efforts of Federal agencies, State and local 
governments, Tribes, and stakeholders across the country. Cumulatively, 
these successes are the result of an immense amount of effort, 
collaboration, and dedication by the Service and our partners, 
including individual citizens, and are essential to conserving our 
natural heritage for future generations of Americans.
    The Service has been proactive and resourceful in utilizing 
specialized funds to further our recovery work. The Service is 
currently using Inflation Reduction Act (IRA) funds to increase 
recovery planning capacity and capabilities to help ensure timely, 
effective, and streamlined processes so we can ensure recovery plans 
are in place to provide the roadmaps for on-the-ground implementation 
actions that are necessary to recover species and remove them from the 
Endangered Species list. We are also using IRA funds to support 
strategic implementation of on the ground recovery actions for listed 
species. We have placed a particular emphasis on listed species 
pertaining to the four focal species groups identified by Congress 
(Hawaii and Pacific Island plants, butterflies and moths, freshwater 
mussels, and southwest desert fish) as well as species that have 
historically needed additional resource investments to achieve 
recovery. For example, our 2018 State and Federal expenditures report 
notes that no agency reported expenditures for 668 listed species, and 
55 percent of listed species had reported expenditures of $10,000 or 
less.
    However, there is a substantial amount of work left to be done. 
Approximately 1,683 U.S. species remain on the Endangered Species list. 
These listed species require action be taken by the Service and others 
to protect their habitat and ensure their survival so that these 
populations no longer need the protections of the ESA to prevent 
extinction.
Environmental Reviews
    Environmental reviews of Federal or federally funded projects play 
an important role in helping to prevent extinctions and facilitate 
recovery. The Service plays a key role in environmental reviews for 
projects under multiple authorities, including the ESA, National 
Environmental Policy Act, Clean Water Act, Fish and Wildlife 
Coordination Act, and the Marine Mammal Protection Act. The Service's 
reviews under these laws generally serve to identify harm to fish, 
wildlife, and plant species and recommend or prescribe ways to 
eliminate, reduce, or minimize such harm. Most often, such reviews 
constitute a small part of the overall scope, timeline, and process of 
an individual project, but they are critical to providing long-term 
conservation benefits.
    Since November 2022, the Service has received more than 87,000 
requests for project reviews under these authorities. The Service's 
current workload is composed of work related to the full gamut of 
industry sectors, such as communications, energy development and 
transmission, mining, agriculture, forestry, commercial and residential 
development construction, transportation, national security/military, 
and water resource development.
    The Service's largest role in environmental reviews is through 
section 7 of the ESA. Under section 7 of the ESA, Federal agencies must 
consult with the Service or NMFS when any action the agency carries 
out, funds, or authorizes may affect either a species listed as 
threatened or endangered, or any critical habitat designated for it. 
The purpose of the consultation is to ensure that any action Federal 
agencies carry out, fund, or authorize will not jeopardize the 
continued existence of any endangered species or threatened species or 
destroy or adversely modify their designated critical habitat.
    If a Federal agency determines its proposed action may affect a 
listed species or designated critical habitat, formal consultation is 
required (except when the Service or NMFS concurs, in writing, the 
proposed action ``is not likely to adversely affect'' listed species or 
designated critical habitat). Formal consultation is a process between 
the Service or NMFS and a Federal agency that determines whether a 
proposed Federal action is likely to jeopardize the continued existence 
of listed species or destroy or adversely modify designated critical 
habitat and concludes with the issuance of a biological opinion and 
incidental take statement by either of the Services.
    Informal consultation is an optional process between the Service or 
NMFS and a Federal agency, prior to formal consultation, to determine 
whether a proposed Federal action may adversely affect listed species 
or critical habitat. This process allows the Federal agency to utilize 
the Services' expertise to evaluate the Federal agency's assessment of 
potential effects or to suggest possible modifications to the proposed 
action, which could avoid potentially adverse effects.
    On average, the Service completes about 1,002 formal section 7 
consultations each year, with an average of 118 days for completion, 
and 78 percent of consultations completed in 135 days or less. On 
average, the Service also completes about 11,123 informal section 7 
consultations each year, with an average of 35 days for completion. The 
amount of time Service staff spend reviewing and advising on a project 
can vary greatly depending on: (1) the completeness of information we 
receive from the Federal agency and applicant (i.e., whether we receive 
adequate information to analyze the effects of the project on listed 
species and critical habitat); (2) the complexity of the proposed 
project; and (3) the number and status of listed species and critical 
habitats in the project area. These environmental reviews not only help 
protect the species and ecosystems we are entrusted with protecting, 
but they can also improve the overall quality of the project itself 
from an environmental standpoint.
    The Service can experience increases in our environmental review 
workload in response to program or project funding received by other 
agencies. For example, we anticipate that project funding under the 
Bipartisan Infrastructure Law (BIL) and IRA will further increase the 
Service's environmental review workload, primarily through additional 
ESA section 7 consultations. Neither the IRA nor the BIL include 
funding for section 7 consultations for projects funded by Federal 
agencies other than the Department of the Interior (DOI) (with the 
exception of the wildland fire management provisions of the BIL). Using 
this limited transfer authority, the Service has entered into transfer 
funding agreements with the U.S. Forest Service (USFS) and DOI's Office 
of Wildland Fire (OWF) to establish a dedicated workforce to carry out 
consultations on this vital work. These agreements will ensure 
dedicated Service staff can consult on USFS and OWF wildfire risk 
reduction projects in a timely manner. It is also enabling the 
development of expertise and relationships specific to USFS and OWF 
wildfire risk reduction activities, which is further facilitating 
efficient and timely environmental reviews. The President's FY 2024 
budget proposes to expand existing transfer authorities by enabling 
Federal agencies to transfer funds provided under BIL to the Service 
and the National Marine Fisheries Service. This authority in concert 
with existing authorities will improve efficiencies and increase 
capacity for environmental planning and consultation. In addition, by 
enabling dedicated staff to engage in programmatic approaches and the 
development of technological solutions, the Service is further 
streamlining project approvals to support more efficient consultations 
for these priority projects.
Ongoing Commitment
    To meet the needs of the species the Service stewards, and to 
provide clarity for our partners and stakeholders, our implementation 
of the ESA must be durable and responsive to changing environmental 
conditions and species status. To this end, our implementation remains 
dynamic through status reviews such as candidate assessments, five-year 
reviews, or discretionary reviews.
    To continue to improve, evolve, and innovate within the authority 
granted by the ESA, the Service also reviews and, at times, adapts 
implementing regulations. In 2019, we conducted comprehensive reviews 
and revisions of the regulations governing reclassifying species, 
critical habitat, and environmental review consultations. More 
recently, in June 2023, we proposed further revision to those 
regulations, primarily for the purpose of incorporating lessons 
learned, ensuring that the regulations are clear to the public and to 
our practitioners, and providing a well-grounded framework for 
effectively achieving the purposes of the ESA. While we recently 
proposed changes to these 2019 regulations, it is important to 
recognize that much of the 2019 regulations are not proposed for 
revision, including the explicit recognition of programmatic 
consultations and other alternative consultation frameworks that 
provide efficiencies, and the deadline for issuing concurrence with 
findings on not likely to adversely affect.
    The Service also reviews and adapts our guidance, internal 
processes, and tools for partners and stakeholders, with the goal of 
increasing clarity, accessibility, efficiency, and effectiveness of ESA 
implementation. For example, to help address our growing consultations 
workload, the Service has worked to update and streamline processes for 
project proponents, including revising the regulations governing 
section 7 consultations and working with Federal agencies to develop 
programmatic consultations. We have also developed the Information for 
Planning and Consultation (IPaC) system which we are utilizing to 
automate portions of the consultation process. In FY 2022, IPaC 
delivered 23,425 streamlined consultation documents and generated over 
103,500 official species lists in response to user requests, saving 
taxpayers the equivalent of approximately 40,690 biologist hours. In 
addition, we are continuing to develop refined species ranges to better 
inform project planning and consultations while reducing the need for 
in-person technical assistance.
    The Service requires sufficient funding, personnel, and other 
resources to effectively carry out its statutory obligations across all 
aspects of the ESA. The ESA directs the Service to submit to Congress 
an annual report for prior fiscal years that contains reasonably 
identifiable Federal expenditures by all Federal agencies made 
primarily for the conservation of endangered and threatened species 
pursuant to the ESA, and by States receiving grants under section 6 of 
the ESA. For FY 2020, Federal and State agencies identified domestic 
and foreign expenditures related to species and land totaled 
$1,264,141,486. This included the Service's $104,759,637 identified 
domestic and foreign expenditures related to species conservation in FY 
2020.
    There are many species for which the Service or other stakeholders 
have few resources available to engage in recovery efforts. Less than 
$5,000 was reported by any Federal or State agency for 27 percent of 
the species listed in 2020. Federal funding is often necessary to 
leverage the collaborative conservation necessary to guide species back 
from the brink of extinction and restore populations to self-sustaining 
levels. The Administration's budget request provides significant 
resources to support the increasing costs of maintaining current 
recovery programs to reduce human/wildlife interactions, manage captive 
populations until reintroductions back to the wild are possible, and 
support our State, Tribal, and local partners who have insufficient 
resources to recover these species. These costs rise as the human 
population rises and as human development increasingly impacts wildlife 
habitat.
    Other areas of ESA implementation also require sufficient resources 
as provided in the Administration's budget request. For example, 
between 2003 and 2022, Service environmental review staff decreased by 
20 percent while new species were listed and economic activity, 
litigation, and the complexity of species analyses increased. As noted 
above, project funding under the IRA and BIL is expected to increase 
the demand for Service technical assistance and section 7 
consultations, but neither law provided funding to the Service for 
section 7 consultations for projects funded by Federal agencies other 
than the DOI (except for the wildland fire management provisions of the 
BIL). Our work with USFS and OWF on wildland fire risk reduction funded 
by the BIL, and our recovery plan updates funded by the IRA, 
demonstrate how effective and efficient the Service can be when 
provided with appropriate funding. Accordingly, the Administration's 
budget request provides funding necessary to significantly bolster the 
planning and consultation workforce and maximize the productivity and 
effectiveness of the program.
    The ESA is critically important as we look to the future--we face 
an ongoing extinction crisis and serious threats to biodiversity. The 
extinction 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.\2\ Preventing extinctions and recovering species 
requires science-based conservation and investing sufficient resources 
to help address the growing impacts from habitat loss, climate change, 
and invasive species before it is too late.
---------------------------------------------------------------------------
    \2\ 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, H.T. Ngo, M. Gueze, J. Agard, A. 
Arneth, P. Balvanera, K.A. Brauman, S.H.M. Butchart, K.M.A. Chan, L.A. 
Garibaldi, K. Ichii, J. Liu, S.M. Subramanian, G.F. Midgley, P. 
Miloslavich, Z. Molnar, D. Obura, A. Pfaff, S. Polasky, A. Purvis, J. 
Razzaque, B. Reyers, R. Roy Chowdhury, Y.J. Shin, I.J. Visseren-
Hamakers, K.J. Willis, and C.N. Zayas (eds.). IPBES secretariat, Bonn, 
Germany. 56 pages. https://doi.org/10.5281/zenodo.3553579.
---------------------------------------------------------------------------
Conclusion

    Assessing the needs of wildlife and plants, encouraging proactive 
voluntary conservation and partnerships, working with landowners to 
conserve species and their habitats while keeping working lands 
working, and recovering and monitoring species are some key 
responsibilities under the ESA that require sufficient resources. 
Investing in our wildlife, fish, and plants, is not only important to 
species and their habitats, but also provides numerous other benefits 
including cleaner air, cleaner water, more climate resilient 
landscapes, and provides places where people can recreate and be in 
nature, which are of innumerable intrinsic and economic value to the 
Nation and its people. Our investments in these species and ecosystems 
make all the difference to future generations--which species will they 
see in the wild, and which species, like the passenger pigeon, will 
only be known through textbooks and museums. The ESA is a critical tool 
in helping to conserve not only species, but also our shared natural 
heritage.

                                 ______
                                 

 Questions Submitted for the Record to the Honorable Martha Williams, 
             Director of the U.S. Fish and Wildlife Service

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

              Questions Submitted by Representative Bentz
    Question 1. This year, USFWS proposed two rules to classify several 
species of surgeon as endangered under the Endangered Species Act. If 
either of these rules moves forward, every person and company operating 
in the United States would be prohibited from selling, delivering, 
transporting and shipping any of these sturgeon species even though all 
foreign sturgeon species are farm-raised and have a positive effect on 
the wild populations.

    Question 2. I am informed that as a result of such a listing, the 
vast majority of the living members of the species, approximately 80% 
are estimated to exist on farms, will be destroyed because they will 
lose all economic value and will no longer be farmed. Assuming that 
such a figure is accurate, explain to me how a listing decision that 
results in the actual destruction of 80% of the members of a particular 
species that exist on earth conserves the species?

    Question 3. As Administrator of FWS, would you support amending the 
ESA to ensure you had the flexibility to ensure that your listing 
decisions would not actually result in the destruction of the vast 
majority of the members of a species that you are trying to protect? It 
would seem to make ense to provide you the authority to draw a clear 
distinction between wild sturgeon populations and captive-bred or farm-
raised, and hybrid species so that a listing of the wild population 
would not result in the destruction of the majority of these 
populations that would no longer have any economic value if they are 
listed as endangered?

          Questions Submitted by Representative Gonzalez-Colon

    Question 1. According to the U.S. Fish and Wildlife Service's (the 
Service) website, there are 69 listed species in Puerto Rico under the 
Service's jurisdiction. This includes our emblematic Puerto Rican 
parrot. I've long commended the Service's work to protect this 
endangered species under its Puerto Rican Parrot Recovery Program, 
which is a great example of how the federal government should partner 
with state and private stakeholders. Whereas in the 1970s only 13 
Puerto Rican parrots remained, I understand today there are 
approximately 690 on the Island--including both wild populations and 
those in captive breeding aviaries.

    Could you discuss the Service's work under the Puerto Rican Parrot 
Recovery Program, and what challenges remain to eventually downlist and 
then hopefully delist this species? That is, what else is needed to 
achieve the Puerto Rican parrot's recovery?

    Question 2. Could you discuss the Service's efforts to incentivize 
private landowners in Puerto Rico to take conservation measures to 
benefit listed species? Especially through the Partners for Fish and 
Wildlife Program and the Coastal Program.

    Question 3. Could you submit a status report on the following 
listed species found in Puerto Rico under the Service's jurisdiction, 
including, if available, how much the Service has spent to support each 
species' recovery and conservation on the Island since Fiscal Year 
2018?

    3a)  Amphibians: Puerto Rican rock frog (coqui guajon), coqui 
llanero, golden coqui, Puerto Rican crested toad

    3b)  Birds: Puerto Rican parrot, yellow-shouldered blackbird, 
Puerto Rican broad-winged hawk, Puerto Rican nightjar, Puerto Rican 
plain pigeon, Puerto Rican sharp-shinned hawk, elfin woods warbler

    3c) Puerto Rican harlequin butterfly

    3d) Antillean manatee

    3e)  Reptiles: green sea turtle, leatherback sea turle, hawksbill 
sea turtle, Mona ground iguana, Mona boa, Puerto Rican boa

                                 ______
                                 

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

 STATEMENT OF JONATHAN WOOD, VICE PRESIDENT OF LAW AND POLICY, 
   PROPERTY AND ENVIRONMENT RESEARCH CENTER, BOZEMAN, MONTANA

    Mr. Wood. Chairman Bentz, Ranking Member Huffman, thank you 
for inviting me to participate in this important and timely 
discussion of the Endangered Species Act on its 50th 
anniversary.
    Living in Bozeman, Montana, I have the great fortune of 
living next to one of the nation's largest intact ecosystems, 
an ecosystem that supports grizzly bears, gray wolves, and 
countless other cherished wildlife. But living in Montana means 
I also get to see firsthand how well-intentioned Federal 
policies can sometimes go awry, and produce conflict where what 
we were aiming for was conservation. Too often, the ESA has 
been an example of such a policy.
    It is true that over the last 50 years only 1 percent of 
listed species have gone extinct. That is a critically 
important accomplishment that we should all celebrate, and that 
we should make sure that we don't lose. However, in passing the 
ESA, Congress set more ambitious goals: to recover the species 
to the point that they were no longer at risk. And it is that 
goal on which we are falling short.
    As you have heard today, only 3 percent of listed species 
have recovered to date. In fact, PERC's research has shown that 
of the 300 species the Service predicted to recover by 2023, 
only 13 have. We can and must do better.
    The lack of recoveries reflects a fundamental problem in 
the implementation of the ESA. Incentives matter, and too often 
we have gotten the incentives wrong. Regulations penalize 
landowners who conserve rare species and their habitats, 
alienating vital partners. Instead, we must encourage states, 
tribes, and private landowners to invest in habitat restoration 
and other proactive recovery efforts.
    To the Biden administration's credit, it has recognized the 
critical importance that incentives play in conservation, and 
committed to pursue conservation in ways that ``honor private 
property rights and support voluntary stewardship.'' Today, I 
will discuss some ways that the ESA can be better implemented 
to align with this vision of conservation as something ``done 
with private landowners, not to them.''
    First, regulations for threatened species should be more 
creatively used to encourage proactive recovery efforts. In my 
written testimony, I discuss how those regulations could chart 
road maps to recover species like the grizzly bear, giving 
legal effect to the recovery goals identified in recovery 
plans, allowing states to resume management authority gradually 
as those goals are met, and rewarding incremental progress 
toward species recovery. This approach could avoid tremendous 
conflict in the resources it wastes.
    But using that approach means rejecting the proposal to 
restore failed and illegal policy of regulating threatened 
species as if they were endangered. The Administration's own 
actions demonstrate that that proposal would be a step 
backwards for species. Every time the Service has listed an 
animal during this Administration and considered what was the 
best approach to recover that species, it has rejected 
endangered-level regulations. Again, every single time, and yet 
the current proposal is to automatically treat threatened 
species as if they endangered without considering what is best 
for those species.
    The other critical opportunity is to find ways to encourage 
habitat maintenance and restoration. Many of these habitats 
will not exist if we simply leave them alone. We have to 
encourage proactive activity to maintain and restore them. 
States and private conservation organizations have pioneered 
many tools for achieving this purpose, including things like 
habitat leases. But those are under-used in the context of the 
ESA.
    Critical habitat designations, on the other hand, can't 
motivate that kind of proactive engagement in conservation. At 
best, they can conserve existing features on lands where those 
features could not be changed without a Federal permit. 
Critical habitat designations are especially unhelpful in 
private lands that are currently unoccupied, unsustainable, or 
unsuitable for a species.
    In the Weyerhaeuser case, for instance, there was no reason 
to think that an unwanted designation that lowered the value of 
private land would encourage a private landowner to convert 
their land into habitat for the dusky gopher frog. That is 
really difficult work, and you don't get there by alienating a 
landowner. In the wake of that Supreme Court defeat, the 
Service's refusal to follow a consistent definition of habitat 
or to address incentives in its designations only exacerbates 
conflict at the expense of conservation.
    I will conclude on the issue that we should hope to be the 
conclusion for every listed species: delisting. A prompt and 
efficient delisting process is essential to reward states, 
tribes, and private landowners for their role in recovering 
species. It is noteworthy that, despite all the conflict around 
delisting, there has not yet been a single species that has 
recovered, been transferred to state management, and backslid 
back on the list. Every time states have taken control of 
species, they have managed to sustain those recoveries.
    Litigation encouraged by overly generous attorneys' fees 
has been a significant obstacle to the Service's ability to 
delist species and take other critical steps to recover 
species. It is often said that you get what you pay for, so 
perhaps it shouldn't be a surprise that heavily subsidizing 
disruptive litigation while penalizing landowners' voluntary 
habitat restoration has produced too much of the former and far 
too little of the latter. If the ESA is going to recover more 
species in its second half century than it did in its first, it 
is essential that it be implemented in ways that get the 
incentives right. Species must be an asset for the private 
landowners who provide habitat and undertake recovery efforts, 
rather than continuing to be a liability.
    I look forward to your questions.

    [The prepared statement of Mr. Wood follows:]
Prepared Statement of Jonathan Wood, Vice President of Law and Policy, 
            Property and Environment Research Center (PERC)

Main Points

     While thankfully few species regulated by the Endangered 
            Species Act have gone extinct over the last 50 years, the 
            statute has fallen far short in its ultimate goal of 
            recovering endangered and threatened species.

     The principal reason that only 3% of listed species have 
            recovered is that the statute penalizes landowners who 
            accommodate rare species or conserve their habitats, 
            creating perverse incentives.

     This failing recovery rate can't be explained away with 
            claims that the ESA simply needs more time. The recovery 
            rate for species the Fish and Wildlife Service predicted 
            would recover by now is a mere 4%.

     To recover more species, the ESA and its implementation 
            must be reformed to improve incentives for states, tribes, 
            and landowners to invest in habitat restoration and 
            proactive recovery efforts.

Introduction

    Chairman Bentz, Ranking Member Huffman, and members of the 
committee, thank you for the invitation to participate in this 
important and timely discussion of the Endangered Species Act on the 
50th anniversary of its enactment. Over the last half-century, less 
than 1% of listed species have gone extinct, a significant and laudable 
accomplishment. But Congress set a more ambitious goal in the ESA: to 
recover species so that they were no longer at risk. Unfortunately, the 
ESA has not been effective at recovering species, with only 3% of 
listed species achieving this goal. This summer, the Property and 
Environment Research Center will publish a report analyzing the Fish 
and Wildlife Service's progress in recovering species, some of the 
findings from which are previewed below.\1\ One of our key findings is 
that the Service has recovered only 13 of the 300 species it predicted 
would recover by now, a 4% recovery rate for those species. This 
suggests that the failing recovery rate can't be excused by claims that 
it is too soon to judge the ESA's effectiveness at recovering species.
---------------------------------------------------------------------------
    \1\ See Katie Wright & Shawn Regan, Missing the Mark: How the 
Endangered Species Act Falls Short of Its Own Recovery Goals, Property 
& Environment Research Center (forthcoming 2023).
---------------------------------------------------------------------------
    Instead, the lack of recoveries--even among those species projected 
to recover by now--is due to a more fundamental problem. Incentives 
matter. And the ESA too often gets them wrong. It imposes regulations 
that penalize landowners who conserve rare species and their habitats, 
making them liabilities rather than assets. As Michael Bean, former EDF 
and Obama admin official, has observed, ``anyone who wishes to improve 
the law's results should start by addressing the[] need [for] positive 
incentives'' to engage in recovery efforts.\2\
---------------------------------------------------------------------------
    \2\ See Eric Holst, The ``dean of endangered species protection'' 
on the past, present, and future of America's wildlife, EDF Growing 
Returns (2017).
---------------------------------------------------------------------------
    To the Biden administration's credit, it has recognized the 
importance of incentives in many of its initiatives, including America 
the Beautiful, and committed to pursue conservation in ways that 
``honor private property rights and support voluntary stewardship.'' 
\3\ PERC has proudly supported the administration when it has acted 
consistent with this commitment, including a proposed ESA rule 
streamlining permitting for voluntary conservation efforts.\4\ 
Unfortunately, the administration's vision of conservation as something 
``done with private landowners, not to them'' \5\ has not been borne 
out in its implementation of the ESA. Several high-profile regulatory 
decisions and proposals have needlessly provoked conflict with states 
and landowners while doing nothing to benefit species or--worse--
directly undermining incentives to restore habitat and recover species.
---------------------------------------------------------------------------
    \3\ See, e.g., Conserving and Restoring America the Beautiful 
(2021).
    \4\ See PERC, Comment Supporting FWS' Proposed Conservation Benefit 
Agreement Rule (Apr. 10, 2023). See also PERC, Comment Supporting the 
BLM's Proposed Conservation Leasing Rule (July 5, 2023); Brian 
Yablonski, New Big-Game Migration Partnership Highlights Incentives for 
Private Working Lands, PERC.org (May 31, 2022); Brian Yablonski, A 
Strong Start to America the Beautiful, PERC.org (May 19, 2021).
    \5\ See Robert Bonnie, Keynote Address for the University of 
Wyoming's 150th Anniversary of Yellowstone Symposium: The Importance of 
Private, Working Lands to Yellowstone in the Twenty-First Century (May 
20, 2022).
---------------------------------------------------------------------------
The Property and Environment Research Center

    PERC is the national leader in market solutions for conservation, 
with over 40 years of research and a network of respected scholars and 
practitioners. Founded in 1980, PERC is nonprofit, nonpartisan, and 
proudly based in Bozeman, Montana. Through research, law and policy, 
and innovative applied conservation programs, PERC explores how 
aligning incentives for environmental stewardship produces sustainable 
outcomes for land, water, and wildlife. With many of the most prominent 
ESA conflicts in our own backyard, , PERC and its affiliated scholars 
have long advocated reforms to the ESA and its implementation to 
empower states to take the lead in recovering species, to remove 
perverse incentives for private landowners that set species back, and 
to create the positive incentives needed to spur habitat restoration 
and proactive recovery efforts.\6\
---------------------------------------------------------------------------
    \6\ See Missing the Mark, supra n. 1; Jonathan Wood & Tate Watkins, 
Critical Habitat's ``Private Land Problem'': Lessons from the Dusky 
Gopher Frog, 51 Envtl. L. Rep. 10,565 (2021); Jonathan Wood, The Road 
to Recovery: How Restoring the Endangered Species Act's Two-Step 
Process Can Prevent Extinction and Promote Recovery, PERC Policy Report 
(2018).
---------------------------------------------------------------------------
An emergency room that doesn't heal and discharge patients

    The ESA is generally effective at preventing extinctions, with 99% 
of listed species remaining around today. This doesn't necessarily mean 
that the statute can be credited with ``saving'' all of these species 
from extinction, of course. That would only be true if every listed 
species would have gone extinct without the ESA. According to the 
Center for Biological Diversity, at least 83% of domestic listed 
species would have persisted without the act.\7\ Thus, the ESA may have 
saved as many as 291 species from extinction.\8\ That is a significant 
achievement, even if considerably more modest than the oft used 99% 
figure suggests.
---------------------------------------------------------------------------
    \7\ See Noah Greenwald, et al., Extinction and the U.S. Endangered 
Species Act, PeerJ (2019).
    \8\ See id. This should be thought of as an upper limit, rather 
than a reliable estimate of the number of extinctions avoided. The CBD 
study assumed that listed species would have the same extinction rate 
as species identified as endangered on the IUCN Red List. See id. at 2. 
But the IUCN's endangered category covers species more vulnerable than 
those listed as endangered--much less those listed as threatened--on 
the ESA list. See, e.g., J. Berton C. Harris, et al., Conserving 
imperiled species: a comparison of the IUCN Red List and U.S. 
Endangered Species Act, 5 Conservation Letters 64 (2012).
---------------------------------------------------------------------------
    But the ESA's goal isn't merely to prevent extinctions. ``In a 
word, the Act's goal is recovery,'' Michael Bean has observed.\9\ 
Congress made this clear by declaring the ESA's purpose to ``conserve'' 
endangered and threatened species,\10\ and by defining conservation in 
recovery terms: as the steps necessary ``to bring any [listed species] 
to the point at which [ESA regulations] are no longer necessary.'' \11\ 
Virtually every operative provision of the ESA is tied to this recovery 
mandate.\12\
---------------------------------------------------------------------------
    \9\ See Michael J. Bean, The Endangered Species Act: Science, 
Policy, and Politics, in The Year in Ecology and Conservation Biology, 
Annals of the New York Academy of Science (2009)
    \10\ See 16 U.S.C. Sec. 1531(b) (identifying the ESA's purposes as 
to ``conserve'' ecosystems, endangered and threatened species, and 
species covered by treaties and international commitments).
    \11\ 16 U.S.C. Sec. 1532(3).
    \12\ See 16 U.S.C. Sec. Sec. 1532(5) (definition of critical 
habitat), 1533(d) (standard for threatened-species regulations), 
1533(f) (standard for recovery plans), 1534 (standard for land 
acquisition), 1535 (standard for collaborating with states), 1536 
(standard for inter-agency consultation), 1539(j) (standard for 
establishing experimental populations).
---------------------------------------------------------------------------
    Unfortunately, the ESA hasn't succeeded at recovering imperiled 
species. Over the last 50 years, only 3% of listed species have 
recovered and been delisted.\13\ And only 58 species have improved to 
the point that their status could be upgraded from endangered to 
threatened.\14\ But this may actually overstate the ESA's success 
because roughly half of these recoveries and status upgrades were 
foreign or plant species subject to relatively little regulation under 
the ESA. Still other species, like the bald eagle, recovered for 
reasons unrelated to the ESA.\15\
---------------------------------------------------------------------------
    \13\ See FWS Environmental Conservation Online System, Delisted 
Species.
    \14\ See FWS Environmental Conservation Online System, Reclassified 
Species.
    \15\ See Jonathan Adler, The Leaky Ark: The Failure of Endangered 
Species Regulation on Private Land, in Rebuilding the Ark: New 
Perspectives on Endangered Species Act Reform (2011).
---------------------------------------------------------------------------
    One reason commonly offered for the ESA's anemic recovery rate is 
that recovery takes a long time and 50 years is too soon to judge the 
law's effectiveness. To test this assertion, my PERC colleagues have 
analyzed the Service's success at recovering species that it previously 
predicted could recover by now.\16\ From 2006 to 2014, the Service 
reported to Congress projections of when species would recover, 
including 300 domestic species projected to recover by 2023.\17\ To 
date, only 13 of those species have recovered.\18\ This is a mere 4% 
recovery rate for the species that should have recovered relatively 
quickly. That this rate isn't materially different from the overall 
recovery rate suggests a more fundamental problem than a mere lack of 
time. And the gap between the recoveries the Service predicted and what 
has been achieved is growing, even when the 44 recovered species 
without projected recovery dates are included.
---------------------------------------------------------------------------
    \16\ See Missing the Mark, supra n. 1.
    \17\ See FWS, Recovery Reports to Congress. See also Missing the 
Mark, supra n. 1.
    \18\ Compare FWS, Recovery Reports to Congress with FWS, ECOS: 
Delisted Species. See Missing the Mark, supra n. 1. This data was used 
in an earlier study to claim that 90% of listed species recover by 
their projected recovery date. See Kieran Suckling, et al., On Time, On 
Target, Center for Biological Diversity (2012). However, that study 
considered a nonrandom selection of a mere 10 species with projected 
recovery dates. Its results can't be reproduced by scientifically 
rigorous means.
---------------------------------------------------------------------------
    Even looking at incremental progress toward recovery paints a bleak 
picture. For decades, the Service reported to Congress whether listed 
species were improving, stable, or declining, a practice it abruptly 
ended in 2012. According to those reports, the number of species 
declining was 2-8 times the number improving.\19\ Another measure of 
incremental progress would be the percentage of recovery actions 
identified in recovery plans that have been completed or partially 
completed. On the ESA's 30th anniversary, the Service reported that it 
has achieved less than 25% of the recovery objectives for 76% of 
species.\20\ To update this result, my PERC colleagues have calculated 
the percent of species with less than 25% of recovery actions marked 
``complete'' or ``partially complete'' in the Service's ECOS database. 
That number has increased over the last 20 years, to 85%.\21\ Thus, by 
any reasonable measure, the ESA is falling significantly short in 
achieving its primary goal of recovering species.
---------------------------------------------------------------------------
    \19\ See Langpap, et al., The Economics of the U.S. Endangered 
Species Act: A Review of Recent Developments, 12 Rev. of Enviro. Econ. 
& Pol'y 69, Fig. 3 (Dec. 2017).
    \20\ FWS, Recovery Report to Congress Fiscal Years 2003-2004 24 
(2004).
    \21\ See FWS, ECOS: Species With Recovery Plans. See also Missing 
the Mark, supra n. 1.
---------------------------------------------------------------------------
    The other reason often given for the lack of recoveries is 
inadequate funding. Funding to provide positive incentives for 
voluntary recovery instead of regulations that create perverse 
incentives for private landowners could boost the recovery rate.\22\ 
But calls for more funding tend to favor paperwork and bureaucracy over 
conservation. A recent Defenders of Wildlife paper, for instance, 
recommends doubling the Service's budget to nearly $850 million but 
would allocate only 30% of that money to on-the-ground recovery 
efforts.\23\ Moreover, focusing on the Service's budget ignores the 
huge contributions of other federal agencies, states, and private 
parties. Prior to 2020, the Service reported government spending on 
endangered and threatened species each year.\24\ According to these 
reports, federal agencies and states spent more than $14 billion on 
listed species from 2011-2020. The Service was responsible for only 13% 
of the spending. If the costs borne and investments made by private 
landowners and conservation groups were included, this share would fall 
even further.
---------------------------------------------------------------------------
    \22\ See, e.g., Wood & Watkins, supra n.2 (advocating the purchase 
of habitat or incentives for habitat restoration instead of designating 
land as critical habitat).
    \23\ See Megan Evansen, et al., Funding Needs for the Fish and 
Wildlife Service's Endangered Species Programs: 2024 (2022).
    \24\ See FWS, Endangered and Threatened Species Expenditures 
Reports.
---------------------------------------------------------------------------
    Efforts to recover the grizzly bear are a good example. In 1993, 
the Service estimated that it could recover most grizzly populations by 
2023 and all populations by 2033 for $26 million.\25\ From 1994 to 
2020, the Service spent nearly $35 million on grizzlies, adjusted for 
inflation.\26\ But states and federal agencies spent another $100 
million. Despite the grizzly receiving more than five times the 
anticipated funding, no populations have been delisted.\27\ And while 
two of the populations are biologically recovered and may be delisted 
in the near future, the other four populations are not on track to meet 
their 2033 projected recovery date.
---------------------------------------------------------------------------
    \25\ FWS, Revised Grizzly Bear Recovery Plan (1993).
    \26\ See FWS, Endangered and Threatened Species Expenditures 
Reports.
    \27\ Cf. Leah Gerber, Conservation triage or injurious neglect in 
endangered species recovery, 113 PNAS 3,563 (2016) (finding that 
government allocation of recovery spending bears little relationship to 
species' needs or the effectiveness of that spending).
---------------------------------------------------------------------------
Incentives Matter

    Too few species have recovered due to the failure to account for 
the incentives of states, tribes, and private landowners whose 
cooperation is essential to recovering species. The law imposes strict 
regulations on land where rare species and their habitats are found, 
effectively penalizing landowners who accommodate rare species and 
conserve their habitats. Sam Hamilton, former Director of the Service, 
summed up the problem well: ``the incentives are wrong here. If a rare 
metal is on my property, the value of my land goes up. But if a rare 
bird occupies the land, its value disappears.'' \28\ As a consequence, 
the ESA can create perverse incentives for landowners to ``shoot, 
shovel, and shut up'' or preemptively destroy habitat before a species' 
presence triggers regulatory consequences. These perverse incentives 
matter because two-thirds of listed species depend on private land for 
habitat.\29\
---------------------------------------------------------------------------
    \28\ Betsy Carpenter, The Best Laid Plans, U.S. News and World 
Report, vol. 115, no. 13 (1993), p. 89.
    \29\ See FWS, ESA Basics: 50 Years of Conserving Endangered Species 
(2023).
---------------------------------------------------------------------------
    Reforming the ESA and its implementation to provide positive 
incentives to states, tribes, landowners, and conservationists who 
conserve rare species and contribute to their recoveries would better 
serve both people and wildlife. Even modest tweaks could address 
perverse incentives and reward recovery progress, thereby making a big 
difference in species recovery without sacrificing the ESA's 
effectiveness at preventing extinctions. Three of those opportunities 
are discussed below.
1. Tailor regulations for threatened species to better align the 
        incentives of states, tribes, and landowners with the interests 
        of imperiled species

    In the ESA, Congress authorized the designation of two categories 
of species: 1) endangered, those currently at risk of extinction; and 
2) threatened, those likely to become endangered in the foreseeable 
future. Congress intended these two categories to be treated very 
differently but, due to a misguided and illegal Service policy, that 
hasn't been the case for almost all of the last 50 years. Instead, both 
categories have been largely treated the same, undermining incentives 
for states, tribes, and landowners to recover species.
    Congress explicitly limited the statute's burdensome ``take'' 
prohibition to endangered species. It did so, according to the bill's 
Senate floor manager, John Tunney (D-CA), because it wished to 
``minimiz[e] the use of the most stringent prohibitions,'' which it 
believed should ``be absolutely enforced only for those species on the 
brink of extinction.'' Instead, for threatened species, Congress 
designed the ESA to ``facilitate regulations that are tailored to the 
needs of the animal'' and encourage states to ``to promote the[ir] 
recovery.'' \30\ Congress even gave states the power to veto 
threatened-species regulations to encourage them to develop their own 
programs, although Service policy has effectively nullified that 
provision.\31\
---------------------------------------------------------------------------
    \30\ See Congressional Research Service, A Legislative History of 
the Endangered Species Act of 1973, as Amended in 1976, 1977, 1978, 
1979, and 1980, at 358 (statement of Sen. Tunney).
    \31\ See Temple Stoellinger, Wildlife Issues are Local--So Why 
Isn't ESA Implementation?, 44 Ecology Law Q. 681 (2017).
---------------------------------------------------------------------------
    Unfortunately, the Service has ignored this congressional direction 
for most of the ESA's history. Instead, it has operated under an 
illegal rule, known as the ``blanket'' 4(d) rule, regulating threatened 
species as if they were endangered without regard to whether that 
approach fit the needs of the animal or encouraged recovery.\32\ In 
2018, PERC published a report showing that this rule undermined 
incentives for states, tribes, and private landowners to recover 
species.\33\ If regulations loosened gradually as species recovered, as 
Congress originally envisioned, states, tribes, and landowners would 
have an incentive to contribute to their recovery. Fortunately, the 
Service repealed this regulation in 2019, explaining that this reform 
would ``incentivize conservation for both endangered species and 
threatened species'' by giving ``[p]rivate landowners and other 
stakeholders . . . more of an incentive to work on recovery actions'' 
through the promise of reduced regulation.\34\
---------------------------------------------------------------------------
    \32\ See Jonathan Wood, Take It to the Limit: The Illegal 
Regulation Prohibiting the Take of Any Threatened Species Under the 
Endangered Species Act, 33 Pace Envtl. L. Rev. 23 (2015).
    \33\ See Road to Recovery, supra n. 6.
    \34\ See 84 Fed. Reg. 44,753, 44,757 (Aug. 27, 2019).
---------------------------------------------------------------------------
    However, last month, the Service proposed to restore the blanket 
rule and eliminate these incentives.\35\ The move is puzzling because 
the Biden administration's own actions demonstrate that this change 
would be bad for species. The rescission of the blanket rule does not 
stop the Service from imposing endangered-level regulations on a 
threatened species if that's what's best for the species. So the 
administration could have taken that approach with any of the 12 
wildlife species it has listed as threatened. It has rejected that 
approach in every case, finding less restrictive regulation better 
encourages species recovery. The Service doesn't reconcile its proposal 
to restore the blanket rule with its consistent rejection of that 
rule's approach when it has considered what's best for species. Nor 
does the Service dispute its earlier determination that discarding the 
blanket rule in favor of less restrictive, tailored regulations 
produces better conservation incentives. Indeed, the Service doesn't 
even address recovery incentives in the proposed rule.
---------------------------------------------------------------------------
    \35\ See 88 Fed. Reg. 40,742 (June 22, 2023).
---------------------------------------------------------------------------
    That the Biden administration has consistently rejected the blanket 
rule's approach when it has considered what's best for species is 
neither a coincidence nor should it be a surprise. The National Marine 
Fisheries Service has never had a blanket rule but has always tailored 
threatened-species regulations to the needs of the species. It has 
found it appropriate to impose endangered-level regulation for 
threatened species only 3% of the time.\36\ Indeed, NMFS has far more 
often found no regulation of threatened species to be the better 
approach.\37\ It simply doesn't make sense to reflexively regulate 
threatened species as if they were endangered when federal agencies 
virtually always reject that approach whenever they consider what's 
best for species. But perhaps most alarming about the Service's 
proposal is that if the unscientific, one-size-fits-all blanket rule is 
restored the Service has announced that it will no longer consider 
what's best for each species before applying it.\38\
---------------------------------------------------------------------------
    \36\ See Ya-Wei Li, Section 4(d) Rules: The Peril and the Promise, 
Defenders of Wildlife White Paper 1 (2017).
    \37\ NMFS has issued regulations governing take of only 19 of the 
47 threatened species under its charge. See NMFS, Protective 
Regulations for Threatened Species Under the Endangered Species Act 
(last visited July 10, 2023).
    \38\ See 88 Fed. Reg. at 40,747 (``If this proposal is finalized, 
for threatened species that use the blanket rules found at 50 CFR 
17.31(a) and 17.71(a), we will not make necessary and advisable 
determinations for the use of those blanket rules in future proposed or 
final listing rules.'').
---------------------------------------------------------------------------
    The Service has also not used its authority to tailor regulations 
for threatened species to its fullest potential. When it passed the 
ESA, Congress described the Service as having ``an almost infinite 
number of options'' \39\ to design rules that encourage states, tribes, 
and landowners to recover species. But the Service's rules have been 
more cookie-cutter than creative, pervasively regulating take with a 
few recurring exemptions for activities with trivial impacts, regulated 
under other federal laws, or approved by the Service through other 
means.\40\
---------------------------------------------------------------------------
    \39\ H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973.
    \40\ See Li, supra n. 31.
---------------------------------------------------------------------------
    In crafting tailored rules, the Service hasn't generally considered 
whether its rules penalize voluntary conservation by private 
landowners. When it proposed to list the lesser prairie chicken 
population in Kansas, Colorado, Oklahoma, and North Texas as 
threatened, it proposed to strictly regulate ranching through the 
region. PERC and other conservation organizations objected that this 
would irrationally punish the very landowners who were voluntarily 
conserving the bird's grassland habitat.\41\ While the Service 
ultimately decided, in response to our comments, to regulate ranchers 
less strictly than it had originally proposed, it also rejected any 
obligation to consider ``the costs of [its] rules on landowners, 
assessment of previous conservation provided by landowners and other 
groups, and calculation of what incentives for conservation [its] rules 
provide.'' \42\ If the Service were focused on crafting threatened-
species rules that put species on the road to recovery, as the ESA 
requires, it would never ignore whether it is encouraging or 
discouraging recovery efforts.
---------------------------------------------------------------------------
    \41\ See PERC, Comment on Proposed Lesser Prairie Chicken 4(d) Rule 
(Sept. 1, 2021); National Wildlife Fed'n, Comment on Proposed Lesser 
Prairie Chicken 4(d) Rule (Aug. 31, 2021); Turner Enterprises & Turner 
Endangered Species Fund, Comment on Proposed Lesser Prairie Chicken 
4(d) Rule (Aug. 16, 2021); The Nature Conservancy, Comment on Proposed 
Lesser Prairie Chicken 4(d) Rule (Aug. 2, 2021).
    \42\ See 87 Fed. Reg. 72,674, 72,717 (Nov. 25, 2022).
---------------------------------------------------------------------------
    Nor has the Service considered how tailored rules might encourage 
recovery efforts by giving effect to recovery plans. Although the ESA 
requires the Service to prepare recovery plans for every species, these 
plans are non-binding. Indeed, recovery plans are generally treated as 
an afterthought, prepared only after key regulatory decisions are made 
and battle-lines drawn. FWS Director Martha Williams has, in an article 
co-authored with former Obama administration officials, argued that 
prioritizing regulatory decisions before recovery plans ``is a missed 
opportunity'' for those regulations to support ``a larger conservation 
strategy.'' \43\
---------------------------------------------------------------------------
    \43\ See David J. Hayes, Michael J. Bean, Martha Williams, A Modest 
Role for A Bold Term: ``Critical Habitat'' Under the Endangered Species 
Act, 43 Envtl. L. Rep. 10,671, 10,672 (2013).
---------------------------------------------------------------------------
    A more effective approach to designing regulations for threatened 
species would be to use them to further the goals identified in a 
recovery plan. Rules that automatically reduce federal regulation as 
recovery goals are met would give effect to recovery plans, better 
encourage voluntary recovery efforts, and reduce conflict over the 
delisting of recovered species. If this approach had been used for the 
grizzly bear, for instance, more of its populations would likely be 
recovered or on their way and much conflict could have been 
avoided.\44\ When the species was listed, there were a mere 136 
grizzlies in the Greater Yellowstone Ecosystem. When the Service set a 
recovery goal of 500 bears in this ecosystem, it could have designed a 
regulation that would gradually transfer management authority to states 
as each population made progress toward their recovery goals, with 
federal regulation fading entirely once recovery goals were met. This 
would have encouraged recovery efforts and have allowed the states to 
build trust with the conservation community over time. Instead, federal 
regulations for the grizzly bear are indifferent to progress toward the 
species' recovery and, despite the Greater Yellowstone population now 
exceeding 1,000 bears, efforts to delist it are fraught due to some 
conservation group's distrust of state management.
---------------------------------------------------------------------------
    \44\ See, e.g., David Willms, Unlocking the Full Power of Section 
4(d) to Facilitate Collaboration and Greater Species Recovery, in The 
Codex of the Endangered Species Act: Volume II: The Next Fifty Years 
(forthcoming 2023).
---------------------------------------------------------------------------
Recovery recommendations:

  1.  Permanently ditch the blanket 4(d) rule and tailor regulations to 
            the needs of each threatened species.\45\
---------------------------------------------------------------------------
    \45\ See Road to Recovery, supra n. 6.

  2.  Use threatened-species rules more creatively to give effect to 
            recovery plans and reward states and landowners for 
            incremental progress toward recovery.\46\
---------------------------------------------------------------------------
    \46\ See id. Jonathan Wood, Testimony on the Recovering America's 
Wildlife Act, U.S. Senate Comm. on Environment and Public Works 
(December 8, 2021).

  3.  To reduce delisting conflict, automatically transfer management 
            to states when recovery goals are met.\47\
---------------------------------------------------------------------------
    \47\ See Willms, supra n. 44.

  4.  Revive the ESA's federalism provisions by encouraging states to 
            develop recovery programs and restoring state's veto of 
            federal threatened-species regulations.\48\
---------------------------------------------------------------------------
    \48\ See Stoellinger, supra n. 33.

2. Only designate areas as critical habitat if the designation is 
---------------------------------------------------------------------------
        likely to produce a net conservation benefit for the species

    Often critical habitat designations offer little conservation 
upside but can have large conservation costs, including perverse 
incentives for landowners to destroy habitat, to prevent habitat 
features from developing naturally, and to forgo investments in habitat 
restoration. In fact, Service officials have long taken a dim view of 
critical habitat designations. Director Williams, in the co-authored 
article mentioned above, observed that critical habitat designations 
``have very little impact'' from a ``conservation perspective.'' \49\ 
Bruce Babbitt, the Secretary of the Interior during the Clinton 
administration, once even remarked that the ESA's critical habitat 
provisions could be eliminated with ``no real world consequences'' for 
species.\50\
---------------------------------------------------------------------------
    \49\ Hayes, Bean, & Williams, supra n. 48.
    \50\ See Julie Cart, Species Protection Act 'Broken', LA Times 
(Nov. 14, 2003).
---------------------------------------------------------------------------
    The reason that critical habitat designations may do more harm than 
good is that they make the presence of habitat features (or the 
potential to create them) a significant liability for landowners while 
often providing no protection to those features. Studies have found 
that designations reduce the value of private land by as much as 
70%.\51\ And, unless use of land designated as critical habitat 
requires some sort of federal permit or approval, a landowner is as 
free to rid their land of any habitat feature after the designation as 
they were before. That is, in many cases, a perfect formula for 
preemptive habitat destruction and foregone investments in habitat 
restoration, especially when it comes to private land or land that 
requires active habitat management or restoration.\52\
---------------------------------------------------------------------------
    \51\ Auffhammer, et al., supra n. 31. See Wood & Watkins, supra n. 
5.
    \52\ See Wood & Watkins, supra n. 5.
---------------------------------------------------------------------------
    Despite broad recognition of the limited role critical habitat 
designations can play, recent decisions from the Service needlessly 
provoke landowners and threaten to encourage counter-productive 
designations. For instance, the Service recently rescinded its 
definition of ``habitat,'' which had limited critical habitat 
designations to areas currently suitable for a species.\53\ That 
definition was adopted in response to a unanimous Supreme Court 
decision holding that land can't be designated as critical habitat 
unless it first qualifies as habitat for the species.\54\ In that case, 
a timber company and forest landowners challenged the designation of 
1,500 acres of private land in Louisiana as critical habitat for the 
dusky gopher frog, despite the fact that the land couldn't support the 
frog unless the landowner converted the forest to longleaf pine, 
repeatedly burned the land to limit understory growth, and managed a 
shallow pond as breeding habitat.\55\ The Nature Conservancy's efforts 
to restore frog habitat in Mississippi demonstrate just how difficult 
and costly an undertaking this would have been for the landowners, if 
they were inclined to pursue such an effort.\56\
---------------------------------------------------------------------------
    \53\ See 87 Fed. Reg. 37,757 (June 24, 2022)
    \54\ See Weyerhaeuser v. Fish and Wildlife Serv., 139 S. Ct. 361, 
368-69 (2018). I was one of the attorneys representing the private 
landowners in Weyerhaeuser.
    \55\ See Wood & Watkins, supra n. 5.
    \56\ See id.
---------------------------------------------------------------------------
    The dusky gopher frog critical habitat designation gave the 
landowners no reason whatsoever to pursue such efforts, however. If 
anything, it prevented future collaboration by alienating the 
landowners. And even if a federal permit were someday required to use 
the land, the absence of habitat features means that the permit could 
not be conditioned on creating any such features. As the Service 
recently acknowledged, the Constitution limits the conditions that can 
be imposed on land-use permits to the mitigation of any harm the 
permitted activity poses to existing habitat features.\57\ Permits 
can't be used to compel landowners to create habitat where there isn't 
any. Instead, as the Supreme Court recognized nearly 3 decades ago, 
purchasing land or compensating states and landowners for habitat 
restoration are the proper means ``for preventing modification of land 
that is not yet but may in the future become habitat for an endangered 
or threatened species.'' \58\
---------------------------------------------------------------------------
    \57\ See 88 Fed. Reg. 31,000, 31,001 (May 15, 2023).
    \58\ Babbitt v. Sweet Home Chapter of Communities for a Great 
Oregon, 515 U.S. 687, 702-03 (1995)
---------------------------------------------------------------------------
    To be effective, the critical habitat program should directly 
consider whether designations encourage landowners to conserve and 
restore habitat or create perverse incentives. Congress has directed 
the Service to consider the costs critical habitat designations impose 
on states, tribes, and private landowners. Because these costs affect 
whether landowners conserve and restore habitat--or preemptively 
destroy it \59\--they are a critical factor in determining whether 
critical habitat designations contribute to the species recovery.
---------------------------------------------------------------------------
    \59\ See Dean Lueck & Jeffrey Michael, Preemptive Habitat 
Destruction under the Endangered Species Act, 46 J. Law & Econ. 27 
(2003).
---------------------------------------------------------------------------
    Consider the Service's recent designation of 10,000 acres of 
forestland owned by the Skipper family in Alabama as critical habitat 
for the black pinesnake.\60\ The apparent reason the Skipper's land was 
selected is that they had partnered with the state of Alabama to 
establish a wildlife management area and voluntarily managed their 
timber harvesting to benefit longleaf pine, white tail deer, and other 
species. After the Service penalized this voluntary conservation, the 
family withdrew from the program. The Service took this step despite 
concluding that the critical habitat designation would impose costs on 
the Skippers without any benefit to the species.\61\ It also didn't 
consider how penalizing the Skippers' voluntary conservation would 
encourage them and others to restore habitat or engage in recovery 
efforts.
---------------------------------------------------------------------------
    \60\ See Complaint, Skipper v. Fish and Wildlife Serv., Case No. 
21-cv-94 (D. Ala. filed Feb. 26, 2021).
    \61\ See Industrial Economics, Screening Analysis of the Likely 
Economic Impacts of Critical Habitat Designation for the Black 
Pinesnake (Oct. 22, 2014).
---------------------------------------------------------------------------
    Instead, the Service resists any obligation to engage in this sort 
of analysis before imposing burdensome critical habitat designations on 
private landowners. Indeed, it has recently proposed to eliminate a 
regulatory requirement that it determine, before designating unoccupied 
areas like the Skippers's land, that the area ``will contribute to the 
conservation of the species.'' \62\ Yet it has offered no explanation 
why it would want to designate private land as critical habitat if it 
won't contribute to conservation.
---------------------------------------------------------------------------
    \62\ See 88 Fed. Reg. at 40,769.
---------------------------------------------------------------------------
Recovery recommendations:

  1.  Define ``habitat'' to limit critical habitat designations to 
            areas currently suitable for a species.\63\
---------------------------------------------------------------------------
    \63\ See Wood & Watkins, supra n. 6.

  2.  Account for perverse incentives directly in the critical habitat 
            designation process.\64\
---------------------------------------------------------------------------
    \64\ See id.

  3.  Purchase land that contains valuable habitat or potential 
            habitat, rather than regulating it.\65\
---------------------------------------------------------------------------
    \65\ See id.

  4.  Compensate private landowners for restoring habitat or meeting 
            benchmarks for species recovery.\66\
---------------------------------------------------------------------------
    \66\ See id.

---------------------------------------------------------------------------
3. Reward investments in recovery by promptly delisting species

    The list of endangered and threatened species is sometimes referred 
to as ``Hotel California,'' after the popular Eagles' song, because 
once species get on the list, they seemingly ``can never leave.'' While 
the limited progress in recovering species is mostly due to the 
Endangered Species Act's lack of incentives to restore habitat and 
undertake other proactive recovery efforts, it also reflects an 
unnecessarily slow and ineffective process for upgrading the status of 
recovered species. The recurring conflict over delisting is puzzling 
because no recovered species transferred back to state management has 
ever regressed and ended up back on the list. Claims that states can't 
sustain recovery progress without federal oversight have no evidence to 
support them.
    There are several reasons why biologically recovered species may 
loiter on the list. The Service may set an objective recovery target 
only to move the goalpost once it's met. Or it may determine a species 
has met a recovery target and its status should be changed but then not 
follow through with a proposal to upgrade the species' status. Or it 
may move forward with a delisting only to be hamstrung for years by 
litigation.
    The gray wolf is the poster child for these problems. When the 
Service reintroduced wolves to Yellowstone National Park in 1995, it 
set a recovery target of 100 wolves each in Idaho, Montana, and 
Wyoming. Within a decade, this target had been far surpassed, with a 
total of 835 wolves in the Northern Rockies in 2004.\67\ Rather than 
the recovered population being promptly delisted, it took 14 years of 
petitions, analysis, litigation, more analysis, more litigation, 
congressional intervention, more analysis, and more litigation before 
wolves in all three states were delisted. Today, after a decade of 
state management, there are nearly 3,000 wolves in this population, yet 
the Secretary of the Interior has threatened to move the goalposts by 
relisting them in response to controversial state hunting 
regulations.\68\
---------------------------------------------------------------------------
    \67\ Endangered and Threatened Wildlife and Plants; Final Rule 
Designating the Northern Rocky Mountain Population of Gray Wolf as a 
Distinct Population Segment and Removing This Distinct Population 
Segment From the Federal List of Endangered and Threatened Wildlife, 73 
Fed. Reg. 10514, 10523 (February 27, 2008).
    \68\ See Deb Haaland, Wolves have walked with us for centuries. 
States are weakening their protections, USA Today (Feb. 7, 2022).
---------------------------------------------------------------------------
    Bureaucratic and legal hurdles would be merely frustrating if they 
didn't affect the incentives to recover species. But, thanks in part to 
the Service's failure to use threatened-species rules creatively to 
encourage recovery, the primary incentive for states and landowners to 
invest in recovery efforts under the Endangered Species Act is the 
prospect that success will be rewarded by delisting the species, 
removing burdensome federal regulations, and returning management to 
states and tribes. If prompt delistings aren't perceived as a realistic 
outcome, recovery efforts will be discouraged.
    The only interests that benefited from the years of conflict over 
wolf delisting were the litigation groups paid more than $600,000 in 
attorney's fees by the government.\69\ Litigation has been a recurring 
and unfortunate problem under the ESA. According to the Forest Service, 
for instance, ESA litigation threatens to hamstring the agency's 
ability to protect habitat from catastrophic wildfires in 87 national 
forests.\70\ The lucrative attorney's fees offered to environmental 
litigants, which can greatly exceed their actual litigation costs, has 
created perverse incentives for environmental organizations to 
prioritize litigation over on-the-ground conservation.
---------------------------------------------------------------------------
    \69\ Joint Stipulation, Defenders of Wildlife v. Salazar, 09-cv-77 
(D. Mont. 2013); Order, Defenders of Wildlife v. Gould, 08-cv-56 (D. 
Mont. 2009).
    \70\ See Statement by Chris French, Deputy Chief, Forest Serv., 
Before the House Natural Resources Committee, Federal Lands 
Subcommittee, on H.R. 200, 1473, 1567, & 1586 (Mar. 23, 2023) (ESA 
litigation threatens forest restoration work throughout 87 national 
forests).
---------------------------------------------------------------------------
    In 2014, for instance, Oregon sold 355 acres of state trust land in 
the Elliott State Forest. Any conservation organization could have 
purchased the entire parcel for $787,000, or a little over $2,000 per 
acre.\71\ Instead, several litigation groups threatened to sue anyone 
who purchased the property. When a timber company bought the land, they 
carried through on that threat, arguing that an ESA permit was required 
to harvest trees on 49 of the acres due to the presence of marbled 
murrelets.\72\ When they won an injunction, they filed an attorney's 
fees motion seeking $1.2 million from the private landowners.\73\ From 
a conservation perspective, it is absurd to spend more than $24,000 an 
acre litigating over an ESA permit and the speculative conservation 
benefits it might provide when the land could have been permanently 
conserved for a small fraction of that cost. Yet the ESA encourages 
precisely this result by subsidizing litigation at the expense of on-
the-ground conservation.
---------------------------------------------------------------------------
    \71\ See Zach Urness, Elliott State Forest sale closes amid 
controversy, Statesman Journal (June 12, 2014).
    \72\ See Center for Biological Diversity, Court Halts Logging of 
Elliott State Forest Tract Sold to Private Timber Company (June 28, 
2022).
    \73\ See Faith Williams, Wildlife Org. Attys Seek $1.2M Fees In 
Marbled Murrelet Fight, Law360 (July 12, 2022).
---------------------------------------------------------------------------
    Conflict over delistings can also undermine recovery efforts more 
directly. In 2020, Colorado voters narrowly approved a referendum 
calling for the reintroduction of wolves to the state. At the time, 
wolves were proposed for delisting nationwide and the Service had 
acknowledged the current delisting was unlawful, so it was assumed the 
plan would proceed free of any ESA obstacles. But that wasn't to be so. 
In 2022, a court overturned the delisting, throwing Colorado's plan 
into doubt. The plan has been further complicated by the arrival of a 
reproductively active pack from Wyoming in 2021. Because the wolves 
naturally returning to Colorado and the wolves to be introduced are all 
from the recovered Northern Rocky Mountain population, there is no bona 
fide ESA concern here. Instead, the problem is that the ESA penalizes 
recovery progress by regulating recovered populations as endangered 
when they grow enough to cross state lines.\74\ Similar problems have 
arisen from wolves expanding into California, Oregon, and Washington.
---------------------------------------------------------------------------
    \74\ See PERC, Comment on the Proposed Establishment of an 
Experimental Population of Gray Wolf (Apr. 18, 2023).
---------------------------------------------------------------------------
Recovery recommendations:

  1.  Propose status changes immediately when recommended in a status 
            review.\75\
---------------------------------------------------------------------------
    \75\ See Jonathan Wood, Modernization of the ESA, PERC.org (Sept. 
16, 2018).

  2.  Use post-delisting monitoring as a cooling-off period for 
            litigation.\76\
---------------------------------------------------------------------------
    \76\ See Willms, supra n. 44.

  3.  Courts should overturn delistings only on proof that the species 
            remains endangered or threatened.\77\
---------------------------------------------------------------------------
    \77\ See Amicus Brief of Pacific Legal Foundation and PERC, Crow 
Indian Tribe v. United States, No. 18-36030 (9th Cir. filed May 30, 
2019).
---------------------------------------------------------------------------

                                 *****

                              ATTACHMENTS

Charts and graphs from Katie Wright & Shawn Regan, Missing the Mark: 
How the Endangered Species Act Falls Short of Its Own Recovery Goals, 
Property and Environment Research Center (forthcoming 2023).

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                                
    Mr. Bentz. Thank you.
    I now recognize Mr. Ashe for 5 minutes.

 STATEMENT OF DAN ASHE, PRESIDENT AND CEO, ASSOCIATION OF ZOOS 
             AND AQUARIUMS, SILVER SPRING, MARYLAND

    Mr. Ashe. Good afternoon, Mr. Chairman and Committee 
members. It is a pleasure and an honor to testify before you on 
the Endangered Species Act. I am the President and CEO of the 
Association of Zoos and Aquariums, and our vision is that a 
modern accredited aquarium or zoo is a wildlife conservation 
organization.
    Our membership of 253 facilities in 13 countries lives this 
vision every day. They have played leading roles in some of the 
ESA's most celebrated successes, like the inspiring rescue and 
recovery of the California condor. They collectively contribute 
over $250 million annually in direct support for wildlife 
conservation. Their education programs annually reach more than 
360 million people.
    AZA accredited members support the notion of a strong and 
protective legal framework for endangered and threatened 
species. They are enthusiastic partners in saving species from 
extinction, and also frustrated and disappointed regulated 
parties.
    Unfortunately, as we approach the ESA's 50th anniversary, 
its once rock solid political support has significantly eroded, 
and the timing couldn't be worse, when it is facing challenges 
not envisioned when it was enacted or even when it was last 
reauthorized in 1992, namely the planet's sixth mass 
extinction, fueled by demands of a growing and increasingly 
affluent human population, and accelerated by climate change, 
exotic and invasive species, the explosion of illegal trade, 
and wildlife trafficking.
    We cannot stop extinction. But through effective 
implementation of laws like the ESA, we can save many species, 
like these inspiring examples in which AZA accredited members 
have played instrumental roles:
    The heroic rescue and rehabilitation of dozens of 
endangered manatees and thousands of endangered sea turtles 
every year.
    Oregon Zoo's innovations in facility design and husbandry 
that are facilitating groundbreaking research on captive polar 
bears.
    An exciting new partnership between Cincinnati Zoo, the 
Fish and Wildlife Service, and private landowners in Texas to 
use captive bred ocelots to restore genetic diversity into the 
dwindling wild population of ocelots.
    San Diego Zoo's Frozen Zoo, with over 10,000 cryopreserved 
living cell lines representing over 1,000 taxa and a seed bank 
with 65 million samples, the largest and most diverse 
collection of its kind in the world.
    The Florida Reef Tract Rescue Project, an AZA partnership 
with the state of Florida and NOAA Fisheries that has collected 
thousands of corals at 19 facilities in 12 states, and creating 
the potential for future restoration and recovery.
    Despite being long-standing and trusted conservation 
partners, our members are increasingly frustrated by long 
delays in the permit application process. In our view, this is 
not the result of infirmities in the law, but a result of 
completely inadequate funding and staffing to handle their 
permitting workloads.
    Wildlife Encounters in Winter Haven, Florida has been in a 
3-year still unsuccessful struggle for approval to move captive 
bred macaws to support a Bolivian Government re-wilding 
project.
    Cincinnati Zoo's application to import captive Asian 
elephants from a European zoo is still pending after 18 months.
    Smithsonian National Zoo has waited nearly a year for an 
export permit to return pandas to China, as required by their 
lease agreement with China.
    Alaska Sealife Center waited 4 years for renewal of its 
permit to rehabilitate rescued walruses, an essential 
government service that they provide at their own cost.
    AZA members are proud to support ESA successes through 
captive breeding for reintroduction, rescue of endangered 
species, and care of confiscated wildlife. However, their 
experience with delays and in permitting is frustrating, 
disruptive of conservation efforts, and deleterious to animal 
care and well-being.
    Our members support the ESA. They do not object to the need 
for compliance. But the delays in achieving compliance are 
unacceptable. A strong and effective Endangered Species Act has 
never been more relevant and important. And most important in 
our view is the need to adequately resource the agencies 
charged with its implementation. Thank you very much.

    [The prepared statement of Mr. Ashe follows:]
Prepared Statement of Daniel M. Ashe, President and CEO, Association of 
                           Zoos and Aquariums

    Good afternoon Mr. Chairman and Committee Members. It is a pleasure 
and honor to testify before you on the Endangered Species Act.
    I am testifying today in my capacity as President and CEO of the 
Association of Zoos and Aquariums and also as a wildlife conservation 
professional who has worked on and with the law for over 40 years. That 
includes 13 years as a member of the Professional Staff of the former 
Committee on Merchant Marine and Fisheries, the House Committee that 
brought the original law, its predecessor laws, and all subsequent 
reauthorizations to the House floor. And, of course, I spent 22 years 
with the U.S. Fish and Wildlife Service.
    The Association of Zoos and Aquariums is a professional membership 
and accrediting organization. AZA accreditation is the global gold 
standard for a modern zoological facility, and our membership includes 
253 accredited facilities in 13 countries. They reflect the highest 
standards in animal care and presentation, guest service, and 
education. They are leaders in the conservation of wild life and wild 
places, and attached to this testimony is our latest report on our 
members' conservation, scientific and educational contributions. It 
shows that they collectively are among the world's largest wild life 
conservation organizations, contributing over $250 million annually in 
direct support for conservation efforts. Their education programs reach 
over 360 million people.
    AZA-accredited members have been integral to many successes in 
endangered species conservation, from California condors to Florida 
corals, wolves to whales, sea turtles to desert tortoises, manatees to 
mussels, and American burying beetles to Hawaiian birds. They are 
dedicated partners in endangered species conservation who support the 
notion of a strong and protective legal framework. They are regulated 
parties who understand and support the need for compliance, but also 
suffer frustrations with lengthy delays in achieving compliance due to 
substantially underfunded and overburdened federal agencies. Later in 
this testimony, I'll give some specific examples of our members' 
partnership successes and their permit frustrations.
    December 28, 2023, will mark 50 years since former President 
Richard M. Nixon signed the Endangered Species Act (ESA), which has 
rightfully earned status as the global gold standard for species and 
biodiversity protection. Its successes are undeniable, and many include 
where zoos and aquariums accredited by the Association of Zoos and 
Aquariums have played crucial roles. The ESA has helped make the U.S. a 
global leader in biodiversity conservation. I and AZA's membership are 
ardent advocates of the ESA, especially the public servants who 
dedicate their careers to make it work. But, at 50, the law is in 
precarious political posture and is being asked to address challenges 
not envisioned when it was enacted or even when it was last 
reauthorized in 1992.

    Political Posture. The ESA's foundations of political support, once 
solid to bedrock, have significantly eroded. It was designed with an 
eye toward things like the bald eagle and American alligator, and 
without even an inkling it would be called upon to confront a planetary 
mass extinction. The ecological framework that supports the planet's 
amazing diversity of biological life is unraveling. We know the cause--
expanding human population and affluence. So, the ESA, in many 
respects, stands between us and our human desires. We like to believe 
that we can have our cake and eat it too, but economic growth and even 
simple human pleasures, like watering our lawns, often stand in stark 
conflict with species protection. People and policymakers express 
concern for species, even diminutives like delta smelt and razorback 
chub, but when those species stand between us and our hot tubs, our 
golf greens, or our winter vegetables, we quickly ask questions like, 
``So, remind me again, why is the delta smelt important?''
    In 1973, the original law passed 92-0 in the U.S. Senate and 355-4 
in the House of Representatives. In 2013, the late-Congressman John 
Dingell (D-MI), who was one of the 355 votes favoring passage, told me, 
``The ESA could likely not garner a simple majority vote in today's 
Congress.''
    The point is, like the biological diversity it seeks to protect, 
the law is in crisis. Its political situation is untenable and 
unsustainable. It has become, like so many issues of our day, hyper-
partisan. And the agencies charged with its implementation are squeezed 
between critics on one side, who think they are being over-regulated, 
and critics on the other, who think the agencies are too timid.
    The resulting lack of consensus places those agencies--the U.S. 
Fish and Wildlife Service and NOAA Fisheries--in a position of 
increasing isolation, with hostile constituencies on all sides, and has 
made it difficult for the agencies to secure the funding needed for 
robust implementation and broader success.

    Challenges Unforeseen. When the law was enacted and reauthorized, I 
believe it was under the general assumption that we can stop 
extinctions. That's a false premise, and many large-scale phenomena 
make extinctions inevitable.
    We are living amidst the planet's sixth mass extinction. The last 
was 65 million years ago, caused by a meteor collision and resulting in 
extinction of the dinosaurs, and millions of other species, creating 
opportunity for mammals to thrive. Today's extinction crisis is unique, 
as it is driven by the ecology and economy of one of those mammal 
species--homo sapien. Humans, particularly the most affluent and 
consumptive humans--like you and me--are on an unwitting, undeniable 
path to exterminate a large proportion of the planet's diversity of 
life. We cannot stop it, but through laws like the ESA, we can save 
many species if we set ourselves to the task and if we don't wait until 
the last moment when a species is gasping for its last breath.
    Climate Change was beginning to be understood in the late-1980s and 
early-1990s, but even as recently as then, we had no context for the 
challenges that it would present. Consider a species like the polar 
bear. Its sea-ice habitat is rapidly disappearing, but we have no way 
to protect that habitat on any time scale relevant to the conservation 
of the bear or restore or replace it as has been successfully done with 
species like red-cockaded woodpecker.
    Likewise, the emergence of exotic and invasive diseases and their 
effect on species conservation was never contemplated. Human society 
was caught flat-footed by the COVID-19 pandemic. Our response required 
trillions of dollars, massive social disruption, and the disease still 
took millions of lives.
    Likewise, conservationists are now confronting exotic and invasive 
diseases like white-nosed syndrome, in bats, chytrid fungus in 
salamanders and frogs, sylvatic plague in prairie dogs, and highly 
pathogenic H5N1 avian influenza in birds with the most meager resources 
and tools. By comparison, it's like fighting wildfires with a garden 
hose.
    Of course, poaching and illegal trade have always been issues, the 
explosion of wildlife trade and trafficking and the sophistication of 
the trafficking networks in the past two decades was never envisioned, 
and current regulatory and enforcement capacities are overwhelmed.
    And science has always been an essential ingredient in ESA 
implementation. When the original law was enacted, the U.S. Fish and 
Wildlife Service operated the world's preeminent system of wildlife 
research facilities, including the Patuxent, Maryland, and Madison, 
Wisconsin, laboratories where Rachel Carson acquired the majority of 
the scientific experience and knowledge that powered her impactful 
work. Today, those labs are shadows of their former selves, and, in my 
opinion, the implementing agencies are falling further and further 
behind, especially in the rapidly developing field of genomic science.
    Mr. Chairman and Subcommittee Members, the ESA is not unlike any 
other area of endeavor. If we look for failure, we can find it. If we 
look for success, we find that, and in my view, in much more abundance.

    Endangered Species Partnership. Partnership has always been a 
hallmark of success in species conservation. As I mentioned earlier, 
AZA member facilities have been integral partners in some of the most 
dramatic and some of the most unheralded ESA successes. Without 
zoological professionals with experience in the husbandry of Andean 
condors and non-native ferret species, the courageous efforts to 
capture and breed the last remaining wild California condors and black-
footed ferrets would have been impossible. Without the expertise of 
facilities like SeaWorld, Brevard Zoo, National Aquarium, Texas State 
Aquarium, and New England Aquarium, the rescue and rehabilitation of 
dozens of endangered manatees and thousands of sea turtles every year 
would not be possible. Red wolves, prairie chickens, right whales, 
chimpanzees, manta rays, cheetahs, and the list goes on and on.
    And our members are joining the Services, as well as State and 
Tribal agencies, at the cutting edge of endangered species 
conservation.
    AZA members, like Oregon Zoo, are doing groundbreaking research on 
captive polar bears, which is difficult, expensive, and dangerous to 
conduct on free-ranging bears. Using standard training and enrichment 
techniques, captive bears can be monitored while walking, running, 
swimming, eating, and sleeping. Their biophysical parameters can be 
measured, helping to ground truth remote data from wild bears. Their 
behaviors can be monitored in response to sound and other disturbances, 
providing crucial data for siting of facilities in critical habitats. 
Instrumentation can be tested before it is applied to wild bears. And 
behavioral research is crucial in helping inform efforts to reduce 
escalating human-bear conflicts.
    Genetic diversity in the recovery of small populations is an ever-
present challenge. AZA members have provided invaluable assistance in 
an innovative ``cross-fostering'' program for the Mexican wolf. 
Husbandry experts at AZA member facilities like El Paso Zoo and 
Brookfield Zoo can precisely time the birth of captive wolf pups and 
then in orchestration with partners, place those pups into wild dens. 
These captive-reared pups bring new genetic diversity into the wild 
population, with the added benefit that the captive-reared pups are 
raised, from birth, as wild wolves, reducing the likelihood that they 
will have socialization issues, and addressing concerns expressed by 
ranchers and adjoining communities.
    The rapid evolution in genetic technologies is bringing both 
challenge and opportunity to the field of endangered species 
conservation, and AZA member facilities are leaders in exploring the 
opportunities. One example is biobanking. In 1975, San Diego Zoo 
Wildlife Alliance had the incredible foresight to create their ``Frozen 
Zoo'', and today, with over 10,000 cryopreserved living cell lines 
representing over 1,000 taxa and a seed bank with 65 million samples, 
it is the largest and most diverse collection of its kind in the world. 
This visionary investment now represents a crucial resource for saving 
species amidst the ongoing extinction crisis. Samples from the SDZWA 
Frozen Zoo have already been deployed in the conservation of black-
footed ferret, mountain yellow-legged frog, Przewalski's horse, 
California condor, and a courageously innovative effort to save the 
northern white rhino from the brink of extinction. The collections 
maintained by AZA member facilities represent an invaluable storehouse 
of genetic diversity that will aid conservation decades into the 
future.
    The ability to respond rapidly to agency needs is also a hallmark 
of AZA member facilities. Stony coral tissue loss disease was first 
observed, in 2014, in the northern parts of the Florida Reef Tract, and 
it has now spread throughout the entire ecosystem, the largest coral 
reef in the continental United States. Around 50% of the 45 species of 
reef-building corals in the Florida Reef Tract are vulnerable to this 
disease, including five species listed as threatened under the ESA. In 
response to the disease, Florida's Fish and Wildlife Conservation 
Commission requested assistance from the Association of Zoos and 
Aquariums to rescue and hold representative and diverse populations of 
coral. In 2018, AZA launched the Florida Reef Tract Rescue Project, 
aiming to collect and house thousands of corals for future restoration. 
Currently, nearly 80% of the 2,283 rescued corals are managed at 19 AZA 
facilities in 12 states, from SeaWorld and Disney in Orlando to the 
Butterfly Pavillion in Colorado. These dedicated facilities have born 
over 80% of the financial and in-kind investment in the rescue project. 
Before this project, AZA facilities were already working on 
conservation efforts for threatened corals in the 1990s and early 
2000s, which laid the foundation for the success of the Florida Reef 
Tract Rescue Project and contributed to coral reef science and 
understanding globally.

    Regulatory Delay and Frustration. Our aquarium and zoo members are 
also part of the regulated community. They require ESA authorization to 
move animals domestically and across international borders. These 
authorizations are often directly tied to conservation efforts, such as 
reintroducing Mexican wolves, black-footed ferrets, California condors, 
and blue-throated macaws. Despite being long-standing and trusted 
partners in conservation with the U.S. Fish and Wildlife Service and 
NOAA Fisheries, our members are increasingly frustrated by long delays 
in the permit application process resulting from agencies not 
adequately resourced to handle their permitting workload.
    One of our members, Wildlife Encounters, based in Winter Haven, 
Florida, has been struggling, for three years, to gain authorization to 
move captive-bred macaws to Bolivia in support of a reintroduction 
project with the Bolivian government. Another, Cincinnati Zoo and 
Botanical Garden, has an application to import captive Asian elephants 
from a European Zoo, which remains pending after nearly 18 months. The 
Smithsonian's National Zoo has been waiting nearly a year for an export 
permit to send Pandas back to China under their lease agreement with 
China. Alaska Sealife Center recently waited four years to receive a 
renewal of its permit to rehabilitate rescued walruses, an essential 
government service that many of our members provide at their own cost.
    I wish we could say these are isolated and extreme examples, but 
the list continues. AZA members are proud to support the implementing 
agencies through captive breeding for reintroduction, rescue of 
endangered species, and care of confiscated wildlife. However, their 
experience with permitting is almost always frustrating, and frequently 
disruptive of conservation efforts, and deleterious to animal care and 
wellbeing.
    Our members support the ESA. They do not object to the need for 
compliance, but the delays in achieving compliance are unacceptable. 
And if long-standing and trusted partners are encountering such lengthy 
compliance delays, and especially in such simple and low-risk cases as 
mentioned here, it is not hard to imagine that complex energy, 
transportation, and infrastructure projects are experiencing the same 
and worse.
    We do not attribute these delays to any infirmities in the law, but 
rather, to the fact that the agency is not adequately funded to meet 
their legal obligations, and especially the regulated community's 
needs. I do also want to commend the Service for their willingness to 
discuss our concerns and to consider possible solutions. We are hopeful 
for progress, especially if they can acquire additional funding that is 
commensurate with their mandated responsibilities.
    Mr. Chairman and Committee members, human ecology and economy is 
driving the planet's sixth mass extinction event. We cannot stop 
extinction, but we can slow it, and we can save some species from it. A 
strong and effective Endangered Species Act has never been more 
relevant and important. And in our view, the most important need is to 
adequately resource the agencies charged with its implementation.
    Thank you!

                                 ______
                                 

    Mr. Bentz. Thank you, Mr. Ashe.
    I now recognize Mr. Jahnz for 5 minutes.

   STATEMENT OF JUSTIN JAHNZ, CHIEF EXECUTIVE OFFICER, EAST 
               CENTRAL ENERGY, BRAHAM, MINNESOTA

    Mr. Jahnz. Chairman Bentz, Ranking Member Huffman, and 
members of the Subcommittee, my name is Justin Jahnz. I am the 
Chief Executive Officer of East Central Energy, headquartered 
in Braham, Minnesota.
    ECE is a not-for-profit, rural electric cooperative that 
serves nearly 66,000 member consumers. ECE manages over 8,000 
miles of distribution lines, which includes rights-of-ways and 
acreage around substations.
    I appreciate the opportunity to testify today and offer a 
perspective on how the Endangered Species Act affects the 
ability of electric cooperatives to provide affordable and 
reliable power.
    ECE is one of about 900 electric cooperatives nationwide, 
providing electricity to approximately 42 million Americans in 
48 states. Electric cooperatives are guided by seven 
principles, including an inherent 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.
    The 50th anniversary of the ESA provides a great 
opportunity to discuss ways to improve the Act so it works 
better for both species and communities, a goal I think we can 
all agree on. I have seen the value of voluntary conservation 
measures and how they can benefit species like the monarch 
butterfly. In my experience, the best way to preserve the 
struggling monarch butterfly is through voluntary conservation 
efforts, rather than government regulation.
    In the early 2000s, East Central Energy began developing a 
utility vegetation management plan that had a heavy emphasis on 
ecosystem and ecology. We knew intuitively that creating an 
ecosystem of compatible plants would provide many benefits to 
our environment.
    In 2018, Alicia Kroll, an ECE employee, came to the 
Environmental Committee and proposed the idea of a monarch way 
station project on ECE property. Eventually, the decision was 
made by our executive team and the board of directors to set 
aside two 2-acre plots for pollinator habitat creation. Around 
this time an innovative, multi-state, multi-industry candidate 
conservation agreement with assurances for the monarch 
butterfly was being promoted within the Rights-of-Way as 
Habitat Working Group at the University of Illinois, Chicago.
    As we explored this opportunity more, we learned that the 
CCAA was a roadmap for energy and transportation land managers 
to reduce or potentially remove key threats to the monarch 
butterfly that occur on our rights-of-way. ECE was the first 
rural electric cooperative in the nation to receive a 
certificate of inclusion into the Monarch CCAA. Today, the 
habitat at our headquarters is in its fourth full growing 
season, and is now well established and beautiful, I might add. 
This year, the remaining portion of land immediately adjacent 
to the current habitat will be converted back to native plants, 
as well.
    As part of the enrollment in the CCAA, annual monitoring 
occurs. The target for the Midwest Region is six stems of 
milkweed per acre and 10 percent cover of nectar plants. In 
2022, ECE averaged 556 stems of milkweed per acre and 21 
percent nectar cover in its rights-of-way. ECE's success is due 
to our two-plus-decade commitment to performing voluntary 
integrated vegetation management. Many other co-ops are 
currently working to implement similar strategies. Listing the 
monarch and associated critical habitat designations could 
derail these important efforts.
    The costs associated with protecting these species can vary 
greatly. Each additional cost that co-ops incur when complying 
with species listing is felt directly by our members because 
electric cooperatives operate at cost. Keeping our rates as 
affordable as possible is important because co-ops serve 92 
percent of this country's persistent poverty counties.
    ECE has been fortunate that our voluntary compliance costs 
have been manageable. We have been able to adapt many of our 
standard practices to benefit the monarch. However, any changes 
to daily operations if the monarch is listed under the ESA 
could significantly increase costs to those unprotected by an 
agreement like the CCAA, especially if their vegetation 
management programs need to change.
    Additionally, there could be uncertainty if any critical 
habitat is assigned with the listing.
    We can do better. Electric cooperatives support the 
underlying goals of the ESA, and we think it can be improved to 
work better for both endangered and threatened species and the 
communities where they are found. My written statement includes 
several recommendations on ways to improve the ESA with a 
greater focus on species recovery, increased transparency, 
greater stakeholder engagement, and several other 
recommendations.
    Thank you for the opportunity to testify, and I would be 
happy to answer any questions at the appropriate time.

    [The prepared statement of Mr. Jahnz follows:]
   Prepared Statement of Justin Jahnz, Chief Executive Officer, East 
                       Central Energy Cooperative

    Chairman Bentz, Ranking Member Huffman, and members of the 
Subcommittee, my name is Justin Jahnz, and I am Chief Executive Officer 
for the East Central Energy Cooperative which headquartered in Braham, 
Minnesota. ECE is a not-for-profit rural electric cooperative that 
serves nearly 63,000 member-consumers. ECE manages over 8,000 miles of 
distribution power lines, which include rights-of-way and acreage 
around substations.
    I appreciate the opportunity to testify today and offer a 
perspective on how the Endangered Species Act (ESA) affects the ability 
of electric cooperatives to provide affordable and reliable power. I am 
here today on behalf of ECE and the National Rural Electric Cooperative 
Association (NRECA).
    ECE is one of about 900 electric cooperatives (co-ops) serving 
electricity to approximately 42 million people in 48 states covering 
56% of America's landmass. We are governed by elected boards of 
directors made up of the people we serve. Co-ops provide service to 
some of the poorest, most rural parts of our country with an average of 
just 10 customers per mile of line. That's far fewer than other types 
of electric utilities. Despite these challenges, co-ops strive to be 
forward-thinking and evolutionary to address a multitude of energy 
industry challenges and meet member expectations. It is this commitment 
to community that pushes ECE to expand its commitment to environmental 
stewardship.
Electric cooperatives, environmental stewardship, 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 Endangered 
Species Act (ESA); however, we think it is important to highlight how 
even a well-intentioned law can create real world challenges.
    The 50th anniversary of its passage provides a good opportunity to 
discuss ways to improve the ESA so it works better for both species and 
communities, a goal I think we can all agree on. A majority of my 
testimony will focus on ECE's on the ground experiences working to 
conserve the monarch butterfly, I will also provide a perspective from 
some of my fellow electric cooperatives that are working to conserve 
other species such as the northern long-eared bat.
    In the early 2000s, ECE began developing a utility vegetation 
management plan that had a heavy emphasis on ecosystem ecology and 
sound arboricultural practices. We knew intuitively that creating an 
ecosystem of compatible plants would provide many benefits including 
maintenance cost (present and future), as well as ecological diversity, 
and quality wildlife habitat. After several years of implementation, we 
began to realize the benefits of the program in all areas.
    ECE continues to use an Integrated Vegetation Management (IVM) 
program, which is generally defined as the practice of promoting 
desirable, stable, low-growing plant communities that will resist 
invasion by tall growing tree species through the use of appropriate, 
environmentally sound, and cost-effective control methods. These 
methods can include a combination of chemical, biological, cultural, 
mechanical, and/or manual treatments. When a compatible ecosystem is 
established, the non-target plants become assets that prevent invasion 
by undesirable species. This ecological diversity is also extremely 
beneficial to many wildlife species.
ECE and the monarch butterfly

    In 2018, Alicia Kroll, an employee from ECE's billing department 
with a background in zoology, came to the environmental committee and 
proposed the idea of a ``monarch waystation'' project on ECE property. 
The committee members discussed the idea and decided to explore some 
options and expand the scope. Eventually the decision was made by the 
executive team and board of directors to set aside two 2-acre plots for 
pollinator habitat creation. Around this time, an innovative, multi-
state, multi-industry Candidate Conservation Agreement with Assurances 
(CCAA) for the Monarch butterfly was being promoted within the Rights-
of-Way as Habitat Working Group at the University of Illinois Chicago.
    As we explored more, we learned that the CCAA was a roadmap for 
energy and transportation land managers to reduce or potentially remove 
key threats to the Monarch butterfly that occur on rights-of-way By 
implementing conservation measures, such as targeted herbicide 
applications, brush removal, planting and seeding native vegetation, 
and providing idle land set-asides, it is projected that total enrolled 
acres could contribute over 300 million stems of milkweed over the 
coming decades.
    ECE was involved with our national trade association, NRECA, in 
advising the CCAA program authors to write the agreement in a way that 
the terms could be achievable and affordable for co-ops, granting them 
greater regulatory certainty in the event that the monarch is listed 
under the ESA in the coming years. Even though the decision to list the 
Monarch butterfly under the Endangered Species Act has not yet been 
made, ECE applied and enrolled as a participant anyway in the spring of 
2020. Habitat set-aside areas were one of the final pieces that would 
qualify ECE for the terms of the agreement. The hope was that we could 
help show the benefit of voluntary participation in the program and 
encourage our fellow cooperatives to join the effort.
    After hearing about this program, ECE's substation manager 
mentioned the recent reconstruction of one of our substations. The 
topsoil had just been spread but not seeded for turf grass. He asked if 
we'd like to do a pilot project for installing pollinator habitat there 
instead of manicured lawn. We jumped at the chance and today the 
project is flourishing. Moving forward, we hope to use this as a 
template for projects at our some of our other 35 distribution 
substations.
    All our hard work paid off. ECE was the first rural electric 
cooperative in the nation to receive a Certificate of Inclusion into 
the Monarch CCAA. Today the habitat at our headquarters is in its 
fourth full growing season and is now well established. We have some 
walking trails around the perimeter and the area is enjoyed by 
employees on their breaks. This year, the remaining portion of land 
immediately adjacent to the current habitat will be converted back to 
native plants as well. This area was primarily invasive species 
surrounding a small pond. This conversion will provide a cohesive 
natural habitat for local wildlife while helping to filter runoff to 
the pond. ECE also hosts an annual Pollinator Week Event both online 
and in-person for members and the general public. This showcases the 
work ECE does to protect monarchs and pollinators and encourages 
members to do the same with native seed packets available and habitat 
experts on hand.
    The benefit to enrolling in the CCAA is that it puts individual 
cooperatives in the drivers' seats of their operations. By moving 
toward a future that considers right-of-way management as pollinator 
habitat management, collectively, we can provide quality habitat to 
help stabilize Monarch populations. In return for using best management 
practices, the CCAA provides regulatory certainties and maximizes 
operational flexibility for ongoing management activities in the event 
of listing.
    As part of the enrollment in the CCAA, annual monitoring occurs 
where conservation measures such as targeted herbicide applications are 
applied. The target for the Midwest region is six stems of milkweed per 
acre and 10% cover of nectar plants. In 2022, ECE averaged 556 stems of 
milkweed per acre and 21% nectar cover in it's rights-of-way. The data 
shows milkweed and forage is available to monarch butterflies when 
conservation measures are applied.

    ECE was one of the first to receive a Certificate of Inclusion, but 
we are excited that we were not the last. In Minnesota we have been 
joined by Kandiyohi County, Polk County, Northern Natural Gas, and the 
Minnesota Department of Transportation. And many other co-ops across 
the nation have joined the CCAA or may join in the near future. 
Nationwide over 30 organizations have submitted applications to join, 
if each of these submitted applications are approved, we would be able 
to protect at least 800,000 acres of monarch butterfly habitat. ECE is 
committed to working with its colleagues to ensure additional progress 
is made to preserve the monarch butterfly.
Electric cooperatives and the northern long eared bat

    Many electric co-ops have long followed reasonable conservation 
practices for the Northern Long Eared Bat (NELB or bat) that balances 
their mission of providing reliable, affordable electricity with 
stewardship of species that live in and around our rights-of-way. Many 
co-ops proactively implement measures that protect a variety of bat 
species, including vegetation trimming in the early spring to limit 
impacts to the still-hibernating bats, the installation of bat boxes, 
and wrapping utility poles.

    The Northern Long Eared Bat is found in 37 states, the District of 
Columbia and Canada. It was listed as Endangered by the Fish and 
Wildlife Service in November 2022. The listing is unique for several 
reasons including the massive size of the bat's range and the fact that 
the NLEB decline in population numbers in recent years is due not to 
human activity or habitat impacts, but overwhelmingly, to the 
devastating impact of White-Nose Syndrome (WNS), a fatal disease-
causing fungal pathogen. This disease has caused approximately 97-100% 
of NLEB species declines across 79% of its range. If this disease had 
not emerged, it is unlikely the Northern Long Eared Bat would be 
experiencing a dramatic population decline.

    The Endangered Species Act does not sufficiently provide for 
compliance mechanisms in cases, such as this, where species declines 
have little to do with human-species interactions or habitat impacts. 
In this case, increasing regulatory requirements on industries, such as 
electric co-ops, will do little to preserve the NLEB or aid in its 
recovery, but it may place unnecessary strain on providers of 
electricity and could hamper efforts to develop and incorporate into 
the grid renewable sources of energy such as wind generation.
Endangered Species Act costs

    Costs associated with protecting species can vary greatly depending 
on the species, the habitat in question, and any restrictions of 
implementation that are associated with the listing. But each 
additional cost that co-ops incur when complying with species listings 
is felt directly by our members because electric cooperatives operate 
at cost. Keeping our rates as affordable as possible is an important 
consideration because co-ops serve 92 percent of the country's 
persistent poverty counties.

    ESA compliance costs can vary greatly among species. ECE has been 
fortunate that to date our voluntary compliance costs have been 
minimal, we have been able to adapt many of our standard practices to 
benefit the Monarch. Aside from additional hours for annual monitoring 
and reporting and fees associated with enrollment in the CCAA, we have 
not seen a significant difference in cost. However, any changes to 
daily operations if the Monarch is listed, could incur significant 
costs to those unprotected by an agreement like the CCAA especially if 
their vegetation management program needs to change. A listing could 
create fear of incidental take which would potentially hinder efforts 
to remove invasive plant species. Removal of invasive vegetation has 
been a very effective habitat restoration tool. Additionally, there 
could be uncertainty if any critical habitat is assigned with the 
listing.

    In some instances, ESA costs can be significant. Earlier this year 
the Committee heard from one of my co-op colleagues, Fred Flippance. In 
his testimony he noted that thirty cents of every dollar of the Oregon 
based Harney Electric Cooperative's power bill goes to fish and 
wildlife mitigation on the Columbia River System.
Conclusion and Endangered Species Act recommendations:

    Electric co-ops support the underlying goals of the ESA, and we 
think it can be improved to work better for both endangered and 
threatened species and the communities where they are found. With that 
in mind we offer the following recommendations:

     A greater focus on species recovery;

     Focus critical habitat designations on specific geographic 
            areas that are actually habitable where habitat features 
            are present for one or more relevant species' life stages; 
            and are sufficiently habitable for a species' long-term 
            survival;

     Increase transparency in how the Act is implemented;

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

     Prioritize proactive stakeholder collaboration, and state 
            and local government engagement.

     Consideration of economic impacts in threatened species 
            designations.

     Assess data and impacts within a reasonably foreseeable 
            future timeframe.

    A successful recovery of the Monarch Butterfly relies heavily on 
collective stewardship of lands across much of the nation. Instituting 
a cohesive plan for Monarch recovery through stakeholder's integrated 
vegetation management could accomplish more than enforcement through 
restrictive regulations. Unduly burdensome regulations would hinder 
cooperation and cause undue harm to time tested, science-based, proven 
protocols for promoting beneficial vegetation along utility rights-of-
ways. Collaboration is key; restrictions are not.
    ECE believes that through collaboration, education, and awareness, 
electric cooperatives can begin to focus on a future where ESA is 
implemented in a manner that benefits both species and communities and 
where pollinator habitat is synonymous with utility vegetation 
management. In that future, healthy ecosystems can exist under every 
power line, and work as nature intended while also providing affordable 
and reliable electricity.
    Thank you for the opportunity to testify here today. I am happy to 
answer any of your questions.

                                 ______
                                 

    Mr. Bentz. Thank you, Mr. Jahnz.
    I now recognize Mr. Vibbert for 5 minutes.

   STATEMENT OF SEAN VIBBERT, OWNER, OBSIDIAN SEED COMPANY, 
                         MADRAS, OREGON

    Mr. Vibbert. Thank you, Chairman Bentz, Ranking Member 
Huffman, and members of the Subcommittee. My name is Sean 
Vibbert, sixth-generation farmer of a 131-year-old farm in 
central Oregon. I am honored to be invited here on the 50th 
anniversary.
    I have to admit, I am a little nervous being here, not 
talking to you guys, but I have never left the farm for a day-
and-a-half during harvest. But I feel it is important to do so. 
I am in the middle of Kentucky bluegrass harvest, and I have 
delayed 2 days of harvesting 195 acres of blue flax for Utah's 
conservation efforts.
    I was here in March, and I have to say I sat in on a 
hearing here in this very room, and I was very impressed. At 
the same time, very disheartened being in here. I have three 
points to make.
    First of all, single species management of the ESA, in my 
view, is misguided.
    The other point is we don't even know if the mitigation 
efforts in my area for the spotted frog that are underway are 
effective or even work.
    And finally, it is sad, but no one species should take 
precedence over a community, its citizens, or other species. 
And I guarantee you I am on the ground, I have seen the other 
species that are hurting from what is going on.
    I am not here to advocate repeal of the ESA. In fact, I am 
far from it. I have worked hard to become the second-largest 
wildflower seed producer in the United States. I produce up to 
27 different varieties a year that go into strip mining 
rehabilitation; fire rehab; sage grouse habitat improvement; 
and pollinator improvement with the Monarch Corridor, which 
emphasizes two species, the bumblebee and the monarch 
butterfly. I guess you could say that is my contribution to 
Team Extreme.
    The seed companies that I deal with depend on me for three 
of the varieties. I hold, basically, the corner on the market: 
purple coneflower, upright yellow prairie coneflower, and black 
eyed Susan. If they don't have them, the projects don't get 
done. If I don't have the water, I can't get them planted.
    It doesn't make any sense that I have a species to the 
south of me, 75 miles where I get my water through Wickiup 
Reservoir, that has a stable population to most scientists that 
have studied it, affecting me trying to do work for a species 
that is getting ready to go on the list in November. It doesn't 
make any sense at all.
    If you look at my written testimony, you will see a little 
bit about where I draw water from. I won't overwhelm you about 
it, but I will basically say this. It is like we have a certain 
amount of water because we were sued by the Center for 
Biological Diversity to supply, and over the course of the next 
3 years, ramp up to 500 CFS, even in the winter time, for a 
frog that is underneath the snow and the mud for habitat. It is 
not even being used. Water going down the river that is being 
wasted. And it is like having a bathtub, and you can't fill it 
because the plug is out of it. That is what we are up against. 
And I don't have the water, nor do my counterparts behind me 
that came to support me to water their cattle, raise their 
crops. It has been very costly.
    And you guys don't understand what it is costing you and 
us. For those of you that are on the climate change bus, the 
people behind me had to truck in 30 million tons of feed last 
year to their farm, they usually raise it on their farm. They 
couldn't do it because there was no water available to us. We 
had to save it for the frog, and that taxes infrastructure.
    Certainly, the carbon emissions, it has been gut wrenching 
to live where I live. Just last week, at this time a farmer 
committed suicide because he didn't have any hope. Now, I don't 
agree with that, but I will tell you what. I wonder, I question 
when we started pitting species for human life. Thank you.

    [The prepared statement of Mr. Vibbert follows:]
    Prepared Statement of Sean Vibbert, Owner, Obsidian Seed Company

    My name is Sean Vibbert. I am a sixth-generation farmer and 
continue to farm with my family in Jefferson County, the central most 
part of Oregon. My family homesteaded here over 130 years ago.
    My great, great, great grandfather began our family operation when 
he homesteaded here. Throughout the years, our family farmed dryland 
wheat, livestock, alfalfa, peppermint and garlic. We now exclusively 
farm grass and wildflower seed.
    I have been actively farming since age 14. Through a lot of sweat, 
hard work and determination in the intervening years culminating ten 
years ago when I bought out the rest of the family, my wife and I now 
own and operate the place.
    I am proud beyond words to be in charge of a 4,000 deeded acre 
agriculture operation.
    Farming is one of those careers that can last for generations. I 
have two sons, ages 17 and 13 and a daughter who is 20 years old. As a 
sixth-generation farmer, of course, I would love to see my kids run our 
farm someday. However, I recently had a conversation with my oldest son 
on this subject.
    We were riding in the pickup together after working ten straight 
18-hour days. (My two sons say they are struggling to keep up with 
``the old man.'') I asked my son if this was something he really wanted 
to do. He said ``yes, I do, Pop. But are we going to have any water so 
I can farm?'' That hit me. Hit me hard.
    On Vibbert Ranch, we grow up to 27 different varieties of 
wildflower seed and three varieties of perennial grasses. I am proud to 
have become the second largest producer of wildflower seed in the 
United States. Depending on the years and varieties, we grow, clean, 
certify and ship around 3.5 million pounds of grass and flower seed 
varieties per year. Most of our seed is sent to the midwestern states 
for use in the so-called Monarch Corridor, a point I will return to 
later.
    Our farming operation obtains water for irrigation from North Unit 
Irrigation District (NUID), the junior water rights holder in the 
Deschutes River Basin. Unlike native flowers that can survive with 
minimal water in their natural habitat and are sparsely populated, our 
operation is water dependent because we are putting the wildflowers 
through high scale production, and it is densely populated. Water is 
absolutely essential to our operation.
    Central Oregon has a very unique climate that allows for these 
specific seeds to be grown here. Several varieties of perennial 
wildflowers can take up to one to two years before they are established 
to the point they will enter the flowering and seed production phase. 
In my area, those varieties produce in half that time. Certain 
perennials I can raise as annuals on the farm. This practice can only 
be done in one other place in the world, on the east side of the Andes 
Mountains in Chile.
    Based on the microclimate, my area is the only place in the United 
States where one can plant a crop of Kentucky bluegrass in August and 
expect a crop the following July. Without water, 85% of the world's 
supply of carrots and 92% of the world's supply of rough stalk blue 
grass could not be obtained. Blue grass is used for lawns, golf courses 
and sports fields, among other uses.
    Here we have extreme changes in temperatures in a 24-hour period of 
time. We can see swings from 85 to 30 during the day. Cold hard winters 
add to our excellent vernalization capabilities. Vernalization is the 
exposure of plants to low temperatures in order to stimulate flowering 
and enhance seed production.
    Since 2020, we have been living under the Deschutes Basin Habitat 
Conservation Plan (HCP) that was some 12 years in the making and was 
promoted as a strategy to share water resources in the basin while 
enhancing fish and wildlife habitat. The U.S. Fish and Wildlife 
Services (USFWS) is a party to this ``voluntary'' agreement which 
covers two species, the Oregon spotted frog and the bull trout. It was 
designed to provide certainty to water managers for the next 30 years. 
The only ``certainty'' it has provided, however, is the certainty that 
we will not have any irrigation water for our farms after the next few 
years.
    After appreciating how difficult it will be to have any irrigation 
water at all after year seven of the HCP, I joined a non-profit 
organization called Perfect Balance USA, which was started by Jeremy 
and JoHanna Symons, who are farmers in my community. The mission of 
Perfect Balance is to educate communities on how food gets from farm to 
table, and how to collectively preserve water for our ecosystems, 
endangered species and farmland.
    I want to address four issues related to the cost of the Endangered 
Species Act. These issues include the cost of: (1) uncertain mitigation 
effectiveness; (2) single species management; (3) hidden costs; and (4) 
effects on community and people.

               Cost of Uncertain Mitigation Effectiveness

    The implementation of the HCP and curtailing water releases began 
just as our county was (and still is) experiencing the most severe 
drought in the history of irrigation here. Yet, we do not know if the 
conservation measures, including ramping up and down (mostly down) of 
irrigation releases working to protect the threatened species actually 
are working. That is due in large part to the hopelessly slow and 
cumbersome processes within the federal bureaucracy. As an example, it 
was just in May 2023 that the USFWS released a draft recovery plan for 
the frog which was federally listed almost ten years ago.

    If it took a decade to write a draft recovery plan, how long will 
it take to have a recovery plan finalized and implemented that is doing 
anything different than what the HCP is already doing? There has to be 
some solution to streamlining the federal bureaucracy.
    If it took ten years to produce an idea to cure a problem on my 
farm that may or may not work, my family would have been out of 
business many generations ago.
    The farmers who rely on irrigation in my community have been 
anxiously waiting to see how the USFWS will work to increase the 
population of the Oregon spotted frog. We have received little to no 
information regarding any recovery efforts. According to biologists 
retained by Perfect Balance, as well as USFWS biologists, the main 
cause of decline of Oregon spotted frog populations is due to predation 
by the bull frog. The bull frog is a larger species of frog that preys 
on Oregon spotted frog eggs and tadpoles. One bull frog can lay up to 
20,000 eggs annually while a spotted frog lays only about 600 eggs a 
year. Additionally, the bull frog competes with the Oregon spotted frog 
for habitat and food.
    In June, 2022, Perfect Balance filed a Freedom of Information Act 
(FOIA) request to USFWS requesting any information related to the 
recovery efforts of the Oregon spotted frog. The response we received 
was disheartening as there has been little to no tangible effort of 
recovery.
    Collectively, the eight irrigation districts who are part of the 
HCP pay $150,000 each year to the Deschutes Basin Conservation Fund 
that USFWS oversees. The HCP has been in place for three years, so that 
is $450,000 total funding paid to the USFWS for the Oregon spotted frog 
recovery efforts. The purpose of this money is supposed to be used to 
support activities that will ``improve conditions for Oregon spotted 
frogs in the Upper Deschutes Basin.'' However, as reported in the 
response to our FOIA request, as of December 31, 2022, only $96,002 
have been spent on recovery efforts. We have yet to see any positive 
impact from the money that has been spent.
    Essentially, our irrigation district patrons have been told that we 
are paying USFWS to implement a plan that will likely result in the 
loss of our generations-old livelihoods in order to save a species that 
they have no apparent urgency to save based on their actions to date.
    There is plenty of evidence that the ESA has not worked in the last 
fifty years as there have been 1,715 species listed as either 
threatened or endangered.\1\ However, only 54 species have ever been 
delisted due to recovery from the Endangered Species List. USFWS likes 
to tout this as a win as only 23 species have gone extinct (roughly 
only 1%).\2\ With this statistic, USFWS fails to recognize the purpose 
of the ESA--to conserve species to the point where they no longer need 
to be protected. Under that purpose, USFWS has only been 3.15% 
successful. Again, if I only had a 3.15% success rate within my 
business, I would have gone out of business a long time ago, and I 
certainly would not be touting that percentage as a success.
---------------------------------------------------------------------------
    \1\ Environmental Conservation Online System. https://ecos.fws.gov/
ecp/report/species-listings-by-year-totals
    \2\ U.S. Fish and Wildlife Service. https://www.fws.gov/press-
release/2021-09/us-fish-and-wildlife-service-proposes-delisting-23-
species-endangered-species#::text=In%20total%2C%2054% 
20species%20have,due%20to%20 successful%20recovery%20efforts.
---------------------------------------------------------------------------

                   Costs of Single Species Management

    The single species management implemented under USFWS of focusing 
on the recovery of Oregon spotted frog in our region is causing damage 
to other species, including a listed species, in the region. For 
example, the timing of water releases to benefit the frog affects the 
navigation of the listed bull trout during that time. As a result, one 
or the other will suffer by the water release.
    As another example, due to lack of water for irrigation during the 
prime growing season, I am struggling to grow wildflower seed that goes 
to help the Monarch butterfly recovery efforts in the mid-west. I am 
the main grower of three varieties of wildflower seed (purple 
coneflower, yellow coneflower and black-eyed Susan) that are used in 
the Monarch Butterfly Corridor. However, because of the mismanagement 
of one endangered species, I am only producing wildflower seed at 40% 
of my farm's capability.
    The Monarch butterfly is a species that is critically imperiled and 
is set to receive a listing status from USFWS by the end of this year. 
Further, one of my own senators, Jeff Merkley of Oregon, has been 
involved in programs such as the Monarch Joint Venture, which is a 
nonprofit organization that works to build partnerships between federal 
and state agencies, other nonprofits, community groups, businesses and 
academic programs working to conserve Monarch butterflies and other 
pollinators.
    Senator Merkley reintroduced the Monarch Action, Recovery, and 
Conservation of Habitat (MONARCH) Act as well as the Monarch and 
Pollinator Highway Act during the 118th Congress. At the end of 2022, 
Congress appropriated $10 million in federal funds, a $6 million 
increase over what was approved the previous year. The $10 million 
included $3 million available through the Monarch and Pollinator 
Highway program, a program that I may not be able to provide seed for. 
If Monarch conservation is so vastly important, why is USFWS making 
decisions that are directly making a negative impact on the Monarch?

                        Hidden Costs of the ESA

    It is no secret that there is constant litigation over the ESA. 
Congress included a cause of action under the ESA to hold USFWS 
accountable when implementing species listing and recovery practices. 
While this cause of action was included with the best intention, years 
later, it is being used by activist environmental groups to profit from 
attorney's fees as part of the litigation to enforce the Act.
    Perfect Balance knows of two ESA cases related to the Oregon 
spotted frog. The first was two non-profit organizations, the Center 
for Biological Diversity and Western Watersheds, attempting to force 
the USFWS to comply with the ESA mandatory listing timeline for the 
species. This case was consolidated with dozens of other ``ESA timeline 
violation cases'' before the District of Columbia District Court in 
2011. The USFWS settled the case which eventually involved a total of 
1,053 species for a total of $295,760 in attorney's fees alone.
    The second suit involved the Center for Biological Diversity and 
WaterWatch suing USFWS and the Bureau of Reclamation (BOR) to stop 
operations and water usage out of Wickiup Reservoir. The irrigation 
districts in my area (including my own) intervened in the lawsuit, 
resulting in a partial settlement where the irrigation districts agreed 
to limit the water flowing to our farms. Soon after, the environmental 
group plaintiffs filed a motion for preliminary injunction to stop any 
water being released from Wickiup Reservoir. Even though the plaintiffs 
lost the motion for preliminary injunction, because of the partial 
settlement that required the irrigation districts to participate in the 
HCP, the plaintiffs were paid a total of $85,440 in attorney's fees for 
simply filing the suit, even though they lost the injunction, and the 
case was settled.

                          Cost to Communities

    The ESA requirements are crippling the entire Central Oregon 
economy and it is having a trickle-down effect. In rural communities, 
all the industries are connected. Farmers no longer are providing 
locally grown food, so it is being sourced and freighted from miles 
away. Farmers are laying off their employees, many of whom are migrant 
workers. Jobs are being lost, businesses are closing, and property 
taxes are struggling to get paid. Schools, police, fire departments and 
many other agencies will eventually suffer financial burdens The high 
cost of food and living is contributing to increased homelessness.
    The cost of hay in our area has increased to $400.00 per ton, 
resulting in the numbers of starving animals exponentially increasing. 
Dog and cat food have also increased by around 25%. Those who have not 
sold their pets and livestock then have to have their feed trucked in 
from sometimes hundreds of miles away, making it more expensive and 
costly to the environment in terms of greenhouse gas emissions caused 
by trucking.
    Farmers not being able to steward their fields has impacts on other 
wildlife as well. Deer, elk, birds, amphibians, and beneficial insects 
also have lost their habitat. Without irrigation, many of the fields 
that wildlife once grazed in are now lying dormant. Instead of farmers 
growing young crops that sequester carbon and produce oxygen, we are 
left with pastures and fields that will grow weeds if we are not using 
harsh herbicides and pesticides to control them. These herbicides and 
pesticides are left on the ground and can eventually end up in the 
aquafer and potentially into the water supply. Even if we do spray the 
weeds, the fields are left as dirt after the wind blows the topsoil 
away.
    Communities are not only impacted financially but socially as well. 
The legacy that farmers pass down to each generation is something that 
we all hold dear to our hearts. When you are the fifth or sixth 
generation on a farm and are the first generation to lose it, there is 
a severe mental toll on the entire family. According to the National 
Rural Health Association, the suicide rate among farmers is three and a 
half times higher than among the general population and is increasing. 
The suicide rate for farmers increased by 48% between 2000 and 2018. As 
regulations and environmental activists make it hard to keep family 
farming operations alive, the mental toll on farmers gets even more 
severe.
    I would like to thank this Committee for holding this hearing and 
for having a discussion related to the costs of the ESA. While there 
are many financial costs associated with the ESA, there are plenty of 
other costs that just as egregiously impact our communities and its 
people.
    Thank you.

                                 ______
                                 

    Mr. Bentz. Thank you. I will now recognize Members for 5 
minutes for questions, and we will begin with Chairman 
Westerman, recognized for 5 minutes.
    Mr. Westerman. Thank you, Chairman Bentz, and thank you 
again to the witnesses for being here today. A lot of familiar 
faces.
    Dr. Williams, in 2013, you co-authored an article with 
other Obama administration officials. And in that article, you 
stated that critical habitat designations ``have very little 
impact from a conservation perspective.'' I and my colleagues 
have been engaged in a bipartisan effort under the CRA to 
reverse the Service's rescission of ``habitat'' definition. 
This definition limits designations to areas that can actually 
support species, which is in line with the article that you 
helped author in 2013.
    So, given your views on the limited conservation benefit of 
critical habitat, it seems that the work the Service is doing 
under your leadership not only contradicts the views expressed 
in the article, but also alienates landowners and distracts 
from recovering species.
    In that same article, you also noted that making 
controversial regulatory decisions like critical habitat 
designations before considering how best to recover species 
results in missed opportunities to promote recovery, which I 
agree with that. So, what policy reforms are needed for the 
Service to focus on recovery planning first, and avoid the 
``fire, aim, ready'' problem that you identified in that 
article?
    Ms. Williams. Chairman Bentz, Chairman Westerman, thank you 
for that question.
    First off, I did write that article. I did not write that 
article in my official capacity, and especially not in my 
capacity as the Director of the Fish and Wildlife Service. I 
think that critical habitat designation is quite misunderstood, 
and sometimes we hang our hats on it when, really, the heart of 
the Endangered Species lies elsewhere: section 4, listing; 
section 7, consultations; and the like.
    To answer your question, I think there are a number of 
layers to this. Yes, I very much agree with you. Were the Fish 
and Wildlife Service and our sister agency not so chronically 
starved in funding, we could put more into recovery planning. 
Thanks very much to the Inflation Reduction Act, we are able to 
now put $62.5 million into recovery planning, and that is very 
important.
    But to get to the proposed changes in the critical habitat 
designation regulation, I don't believe that the last 
administration's changes were reasoned or moderate, nor were 
they helpful. What the proposed regulation under this 
Administration does, and I think sometimes it has been 
mischaracterized, is it finds that very reasoned and steady 
attempt to have a durable solution to critical habitat 
designation going forward.
    In fact, when I was the Director of the Montana Department 
of Fish, Wildlife, and Parks, I wrote a comment letter in 
opposition to the previous administration, adding a definition 
of critical habitat into the regulations because I didn't think 
it helped me then as a State Director; it hindered. So, just to 
know that the regulations this Administration and under my 
tenure as Director of the Fish and Wildlife Service is meant to 
be very reasoned and durable, and does not change consultations 
or many of the other issues that people have raised.
    Nonetheless, I look forward to working with you, Chair 
Westerman, on these issues that I know you care about very 
much, as well as me.
    Mr. Westerman. Thank you.
    Mr. Wood, what role do private lands and states play in 
recovering species, and how did the ESA and current regulations 
make it so that species are a liability to the people who are 
actually trying to protect them?
    Mr. Wood. Private landowners are the most important 
conservationists. The Fish and Wildlife Service has found that 
over two-thirds of species depend on private land for their 
habitat. And too often, because we lead with regulations rather 
than recovery planning or on-the-ground conservation efforts, 
the signal that an ESA listing sends to private landowners is a 
penalty that immediately your ability to use your land is 
restricted by the take prohibition. If your land is designated 
critical habitat, its value may go down. It is all stick, and 
it is only later that we start thinking about what the carrot 
should be to encourage the maintenance and restoration of that 
habitat.
    Mr. Westerman. And we are often told that all we need is 
more money, just more money to recover species. Why do we need 
good policy reforms, and not just money to make a difference?
    Mr. Wood. Because right now what we are doing is making 
species and their habitat a liability, and then trying to use 
funding to make up for that. It is sort of like you have dug a 
hole and then tried to fill it up, when it would be better off 
to start from a perspective of how do we make species and their 
habitat an asset at the front end so we are not having to fix 
that policy error.
    Mr. Westerman. Thank you, Mr. Chairman. I yield back.
    Mr. Bentz. Thank you. The Chair recognizes Ranking Member 
Huffman for 5 minutes.
    Mr. Huffman. Thank you, Mr. Chairman, and thanks to the 
witnesses. I want to dig in a little further to this idea of 
voluntary and incentive-based conservation as an alternative, 
perhaps, it has been suggested, to some of the more 
prescriptive aspects of the ESA.
    I think there is this notion that we have heard a few times 
already today that, if we did less of the listing, less of the 
critical habitat designation, and in fact, we have actually 
seen some bills to take away those authorities and constrain 
them, that we could then better support voluntary initiatives. 
And we have heard some success stories on that type of 
conservation here today. We love those stories. It is great to 
see, and thanks for everybody who does that.
    But Mr. Ashe, I want to start with you. Do you think that 
voluntary conservation efforts alone are going to get us very 
far down the road with respect to the Endangered Species Act?
    In other words, if we took away these prescriptive 
authorities that are the teeth in the Endangered Species Act, 
what would happen to some of these voluntary efforts that we 
all want to see?
    Mr. Ashe. Thank you, Mr. Huffman. I would start with, when 
we talk about voluntary efforts, and particularly incentive-
driven voluntary efforts, I mean, again, I will get back to my 
main point: that takes funding.
    The most important incentive-based programs are things like 
Working Lands for Wildlife and efforts like that, where we are 
in partnership with the Agriculture Department. It takes 
funding to drive that.
    But no, if we think about something like the manatee, one 
of the key ingredients in recovery to date of the manatee has 
been reduction in boat collisions. That required a regulation 
to reduce speeds in areas where manatees congregate. If we had 
relied on voluntary measures, it wouldn't have happened. You 
have to have enforceable measures to achieve those objectives. 
And you assume people basically will comply with the law, and 
they did in Florida. And we worked in partnership with the 
state of Florida to enforce those speed restrictions.
    So, incentive-based and voluntary conservation measures 
play a significant role in achieving recovery objectives, but 
there are clearly instances where they don't work, and they are 
not sufficient.
    Mr. Huffman. Thank you.
    Director Williams, does the presence of that backstop, I 
mean, we would all prefer to avoid more prescriptive things 
like listings and designations, take enforcements, things like 
that. Do those authorities, as a backstop, have a beneficial 
effect in terms of motivating voluntary conservation efforts 
that can help avoid listings?
    Ms. Williams. Thank you for that question, Ranking Member 
Huffman.
    In answering that, I would echo Mr. Ashe in that voluntary 
conservation is incredibly important, and it is very much a 
part of the underpinning of the Endangered Species Act. But the 
voluntary conservation alone does not get us to where we need 
to be for so many species.
    And yes, often, when species or candidates are at risk, are 
declining, there is an incentive to get voluntary conservation 
agreements in place that provide assurances if that species 
were to be listed. So, yes, I think that the specter of listing 
can help spur conservation to happen. We would like to be in 
the spot of helping species before having to get there.
    Mr. Huffman. Similarly, if that backstop did not exist, is 
it fair to assume that some of these voluntary partnerships 
might not materialize?
    Ms. Williams. I think that is the case that we have seen 
over time.
    Mr. Huffman. I want to ask about science. Assistant 
Administrator Coit, it has been suggested in some of our prior 
hearings in context of several bills we have considered that 
Members of Congress ought to make the call on which species get 
listed and delisted. And we have a lot of interesting Members 
of Congress. We have dentists and tree experts, and the 
Chairman is a pretty good water lawyer, but we don't have the 
kind of wildlife science resource capacity that resource 
agencies actually have. And the ESA was kind of set up to take 
the politics out of these decisions, wasn't it?
    Why is it important that we leave these tough decisions to 
the scientists at these agencies?
    Ms. Coit. I appreciate the question, Ranking Member 
Huffman.
    I think a core tenet of ESA is that these decisions on 
listing should be based solely on the basis of the best 
scientific and commercial data available, and that is in the 
purview of the scientific community. And while we ask for input 
on those decisions, it is essential to the integrity of the ESA 
that they be made based on science. That is a core principle.
    Mr. Huffman. Thank you. I yield back.
    Mr. Bentz. The Chair recognizes Representative McClintock 
for 5 minutes.
    Mr. McClintock. Thank you, Mr. Chairman. The Ranking Member 
just told us that we are losing three species every hour. So, 
let me get this straight. The ESA has recovered 58 species in 
50 years at enormous cost, and yet we are losing three species 
every hour. Now, that doesn't sound to me like a very effective 
program.
    Fortunately, the claim is simply extreme junk science. 
Variations of it have circulated around the Internet for many 
years. The BBC, which is hardly a right-wing cable network, 
thoroughly debunked this claim in 2012. In part, it reported, 
and I quote, ``The International Union for Conservation of 
Nature, the IUCN, has listed 801 animal and plant species, 
mostly animal, known to have gone extinct since 1500.'' And 
then they asked the question, ``If it is really true that up to 
150 species are being lost every day, shouldn't we expect to be 
able to name more than 801 extinct species in 512 years?''
    Mr. Chairman, I ask unanimous consent to enter into the 
record the BBC expose entitled, ``Biodiversity loss: How 
accurate are the numbers?,'' dated April 25, 2012.
    Mr. Bentz. So ordered.

    [The information follows:]

Biodiversity loss: How accurate are the numbers?

BBC News, April 25, 2012, by Richard Knight

https:://www.bbc.com/news/magazine-17826898

                                 *****

Twenty years ago, the Earth Summit in Rio resulted in a Convention on 
Biological Diversity, now signed by 193 nations, to prevent species 
loss. But can we tell how many species are becoming extinct?

One statement on the Convention's website claims: ``We are indeed 
experiencing the greatest wave of extinction since the disappearance of 
the dinosaurs.''

While that may (or may not) be true, the next sentence is spuriously 
precise: ``Every hour three species disappear. Every day up to 1SO 
species are lost.''

Even putting aside the apparent mathematical error in that claim (on 
the face of it, if three species are disappearing every hour, 72 would 
be lost every day) there is an obvious problem in generating any such 
number. No-one knows how many species exist. And if we don't know a 
species exists, we won't miss it when it's gone.

``Current estimates of the number of species can vary from, let's say, 
two million species to over 30 or even 100 million species,'' says Dr 
Braulio Dias, executive secretary of the Convention on Biological 
Diversity. ``So we don't have a good estimate to an order of magnitude 
of precision,'' he says.

It is possible to count the number of species known to be extinct. The 
International Union for Conservation of Nature (IUCN) does just that. 
It has Listed 801 animal and plant species (mostly animal) known to 
have gone extinct since 1500.

But if it's really true that up to 150 species are being lost every 
day, shouldn't we expect to be able to name more than 801 extinct 
species in 512 years?

Professor Georgina Mace, who works in the Centre for Population Biology 
at Imperial College London, says the IUCN's method is helpful but 
inadequate. ``It is never going to get us the answers we need,'' she 
says. That's why scientists prefer to use a mathematical model to 
estimate species loss.

Recently, however, that model has been attacked in the pages of Nature. 
Professor Stephen Hubbell from the University of California, Los 
Angeles, says that an error in the model means that it has--for years--
over-estimated the rate of species loss.

The model applies something called the ``species to area relationship'' 
to habitat loss. Put simply, an estimate is made of the number of 
species in a given area, or habitat--the larger the area, the greater 
the number of species are said to be in it.

Then the model is worked backwards--the smaller the area, the fewer the 
species. In other words, if you measure habitat loss, you can use the 
model to calculate how many species are being lost as that habitat gets 
smaller.

The problem, says Hubbell, is that the model does not work in reverse. 
``The method,'' he says, ``when extrapolated backward, doesn't take 
into account the fact that you need to remove more area to get to the 
whole range of a species than you need to remove area to find the first 
individual of a species.''

Hubbell's point is that if you increase a habitat by, say, five 
hectares, and your calculations show that you expect there to be five 
new species in those five hectares, it is wrong to assume that 
reversing the model, and shrinking your habitat, eliminates five 
species.

That's because it takes more area to establish extinction--to show that 
every individual in a species has been eliminated--than it does to 
discover a new species, which requires coming across just one 
individual of that species. Hubbell says when corrected the model shows 
about half as many species going extinct as previously reported.

Unfortunately for scientists trying to measure species loss, the 
problems don't end there. They also need to calculate the `background 
rate' of extinction. If you want to work out the impact of human life 
on biodiversity, you need to know how many species would have gone 
extinct anyway without us being here. Mace says that is difficult.

``Background rates are not constant either,'' she says. ``If you look 
back through the history of life on Earth, there have been major 
periods of extinctions. Extinction rates vary a lot.''

The level of uncertainty faced by researchers in this field means it is 
perhaps not surprising that no-one can be sure of the scale of species 
loss. It also means that when a representative of the Convention of 
Biological Diversity claimed ``every hour three species disappear'' he 
must have known it was too precise.

But the fact that the precise extinction rate is unknowable does not 
prove that the problem is imagined.

Braulio Dias, executive secretary of the Convention on Biological 
Diversity, says: ``We know that the drivers behind species loss are 
mostly increasing--land conversion and degradation, pollution, climate 
change. And of course the human population is still growing and 
consumption is growing--and most of that consumption is not 
sustainable.''

Professor Hubbell, too, thinks species loss is a serious issue, even 
though he believes it has been exaggerated.

There is, though, one other problem faced by anyone who wants to call 
attention to the issue--the fear that people are inclined to care more 
about so-called charismatic animals (mostly larger animals which we 
recognise) than the millions of nameless and microscopic organisms 
which are also included in species loss models.

Hubbell says we should be at least as concerned about such seemingly 
unimportant species.

``The proportion of the world's species that are charismatic organisms 
is really tiny,'' he says. ``From a biomass point of view, this is a 
bacterial planet. It's a very parochial view to assume that we should 
care only about elephants and zebras.''

But if people do care more about charismatic animals than bacteria, 
which seems likely, then it might prove difficult to get those people 
to take the issue seriously unless such animals are threatened.

A number of charismatic species, or sub-species, have become extinct in 
the wild, but have been kept alive in captivity thanks to the efforts 
of enthusiasts and campaigners.

Others have gone extinct--like the Pyrenean Ibex or the Baiji river 
dolphin. But compared to the number of species which exist in the 
world, even taking the lowest estimates of that number, such known 
cases are very few.

According to IUCN data, for example, only one animal has been 
definitely identified as having gone extinct since 2000. It was a 
mollusc.

                                 ______
                                 

    Mr. McClintock. Mr. Vibbert, you said this, and we all 
agree with it, that no one wants to see a species go extinct if 
it can be prevented. Why shouldn't captive breeding programs be 
used to meet ESA requirements? They have been used to bring 
species like the California condor back from the very brink of 
extinction. Why can't that same process be used when it is 
cheaper than the extreme requirements of, for example, setting 
aside hundreds of thousands or even millions of acres of land 
and placing it off limit for productive use?
    I am told that such a provision, simply allowing captive 
breeding programs to be used to meet the ESA requirements, 
would all but solve the pumping restrictions involving the 
delta smelt that have desiccated California's Central Valley.
    Mr. Vibbert. Thank you for the question, because it is not 
about the smelt, and it is not about the frog. It is about the 
water. And it is really about power, control.
    And my grandfather told me back when I was in high school, 
he told me he didn't want me to come back to farm. He said, 
``Find another job. Be a teacher, biologist. Do something. 
Don't come back.''
    Mr. McClintock. Forgive me, but I only have a few minutes. 
Let me move to Mr. Wood.
    Any reason why we shouldn't be able to use captive breeding 
programs to meet these requirements and maintain these species 
at healthy levels?
    Mr. Wood. It is not ideal. I think most people would like 
to see ecosystems conserved, but it absolutely plays a vital 
role, and often can be far more effective than some of the 
other tools that are used.
    Mr. McClintock. Yes. We are told that somehow they are 
different, but biologists told me that the difference between a 
species bred in captivity and one in the wild is the difference 
between a baby born at a hospital and a baby born at home. Is 
that accurate?
    Mr. Wood. That is right. In terms of the role they can play 
in the ecosystem, if you were to----
    Mr. McClintock. By the way, I have a bill that would do 
exactly that.
    Mr. Chairman, I would sure like to get a hearing on that 
bill in the near future. Can I get your commitment to do that?
    Mr. Bentz. Of course.
    Mr. McClintock. Thank you.
    Mr. Wood, what can be done to make ESA rulings more 
transparent? One of the recurrent complaints we hear is that 
the rules are announced without clear scientific basis or 
authority, making it difficult, if not impossible, to determine 
if the decision is actually following the facts, or whether the 
facts are simply being selected to support the decision. Is 
that a legitimate concern? And if so, what can be done to 
correct it?
    Mr. Wood. I think there is a problem in a lack of 
consistency across decisions. Different policy judgments will 
be made or different readings of the science will vary from 
administration to administration, from decision to decision. 
The repeal of the habitat definition is a good example of this, 
where the Service's purported reason to go without a 
definition, to essentially fly blind in the critical habitat 
space, was they wanted the flexibility to decide what habitat 
might mean from one species to the next, rather than defining 
the term and following a consistent, clear policy.
    Mr. McClintock. One of the great ironies of the ESA is that 
it often works against the species that it is supposed to 
protect. A prime example is the spotted owl. Protecting spotted 
owl habitats put them off limits to forest management. The lack 
of forest management caused catastrophic build-up of excessive 
fuels. The wildfires that resulted wiped out the very spotted 
owl habitats that they were supposed to protect.
    For example, the Rim Fire in my district, in the Sierra 
Nevada, wiped out 46 spotted owl habitats; the King Fire 
another 32. What would have been a more effective way to 
protect the spotted owl?
    Mr. Wood. To encourage the maintenance and restoration of 
the habitat. It is one of the fundamental problems.
    When the ESA was enacted, the assumption was if we just 
leave species alone, they will magically recover, and that is 
simply not true. We need incentives to encourage people to go 
out and do the hard work of restoring habitat and pursuing 
proactive recovery efforts.
    Mr. McClintock. Thank you. I yield back.
    Mrs. Peltola. The Chair recognizes Congresswoman Peltola 
for 5 minutes.
    Mrs. Peltola. Thank you. I am just sitting over here having 
an existential crisis. This is just a really difficult 
conversation, listening to farmers talk about the lack of 
water, and kind of the Sophie's Choice between how do we feed 
people and make sure that all of the species that we have are 
being protected, as well. But I am going to get off that topic 
and ask Assistant Administrator Coit a quick question.
    In Alaska, we have ANILCA, Alaska National Interest Lands 
Conservation Act. And this Act requires that on Federal lands 
the top priority be subsistence, and the top user group be 
rural people who live in proximity to that resource when it is 
in shortage. And I am wondering, Administrator Coit, how do you 
balance a law like ANILCA and a law like Endangered Species Act 
if they are conflicting.
    Ms. Coit. Thank you for that question.
    As you know, section 10(e) of the Endangered Species Act 
exempts the taking of listed animals for subsistence purposes 
by Alaska natives. That helps prevent the conflict that you 
just referenced.
    Mrs. Peltola. And it also--if I may, sorry, it also 
prevents rural people, because ANILCA isn't just for natives, 
it is for rural people, whatever their ethnicity is.
    Ms. Coit. On the general question, in terms of statutory 
requirements, ANILCA, like any other law, is something that we 
are required to take into account and satisfy. So, harmonizing 
ESA and ANILCA is our responsibility, and I am not aware of 
specific conflicts between the two, but I can look into that 
further.
    Mrs. Peltola. OK. And I would like to ask, if I might, Mr. 
Chairman, the same question of Director Williams.
    Ms. Williams. Thank you, Mr. Chair and Congresswoman 
Peltola.
    For the Fish and Wildlife Service to get to a specific 
conflict between the Endangered Species Act and ANILCA, as an 
example that has come up throughout today, is that we will do 
our very best to prevent having that direct conflict. And the 
Fish and Wildlife Service Alaska Region has been paying more 
and more attention to subsistence work, and would try to 
prevent that from even happening, the conflict.
    So, I think the first answer is to not get to that 
conflict, and for us to be doing our very best to be working 
with communities and Alaska natives before getting to that.
    Mrs. Peltola. OK. And to Mr. Vibbert. I guess I would just 
like to yield my time to you in the event that you would like 
to add anything to this conversation, the larger conversation, 
not ANILCA, of course.
    Mr. Vibbert. Well, yes, and I am sorry that I interrupted. 
I know you had time, but what I was saying, it would be too 
easy to do, that has been proposed in my area with the spotted 
frog, and the Fish and Game don't want to do that.
    And what it boils down to is the river that I am near, the 
Deschutes River, flows high all year long, and it has had 
effect on certain species of fish and wildlife. And some of the 
implementation by the scientists, and when I say that, I say 
that loosely, as far as experts go, because in my opinion, an 
expert is a has-been drip under pressure. You can find a 
scientist who will believe one way, and you could find one who 
is vice versa.
    There has to come a point here where we all come together 
and do what is best for the community and the species at hand.
    I have a notebook on all of you guys, Googled it. And I 
will tell you, you have an all-star cast here. And the 
disheartening part about it is when I was here, there were some 
that just didn't ask the people that were actually on the 
ground what is going on, and it is hurtful. I know you guys 
wouldn't want to be treated the same way. And we are trying to 
supply something to you.
    Mr. Bentz. Thank you. The Chair recognizes Congresswoman 
Duarte for 5 minutes.
    Mr. Duarte. Thank you, Chairman.
    It has been an exciting first year as a Congressman. We 
have heard about all kinds of things on the Endangered Species 
Act in this Committee. We have heard about wolves being 
released into Yellowstone and over-populating and still not 
being delisted. We have heard the same thing with grizzly 
bears. We recently had a major court decision come down in 
favor of lobstermen who hadn't had a right whale fishing line 
incident within the last 24 years, but we are still required to 
restrict their practices further because of a claim of Chevron 
deference by an agency that wanted them to possibly go out of 
business.
    I live in the Central Valley. I represent Modesto down 
through Fresno, where we grow a lot of almonds. We have a lot 
of irrigated farmland coming out of the Sierra Nevada. A lot of 
those areas that are irrigated in my district are supplied with 
water out of the delta. And we have seen in the last 20, 30 
years an incredibly unsuccessful effort to save the delta 
smelt--it is dead, it has been dead for a few years, find me 
one if you can--to save the salmon. Their numbers are low, they 
are very low.
    We are flushing 70 to 90 million acre-feet of water a year 
out into the ocean from our water projects in California. We 
have devastated our groundwater. It has fallen dramatically. It 
actually causes infrastructure problems with the subsidence 
related. It has devastated rural communities, farm families. It 
has devastated farm workers and, again, provided no benefits.
    Are you, Administrator Coit or Director Williams, are you 
accountable to deliver results, or are you simply charged to 
disburse of our resources as you will, without accountability 
for results?
    That is a question.
    Ms. Williams. Chairman Bentz and Congressman Duarte, as a 
public servant, I believe that, for the Fish and Wildlife 
Service the buck does stop with me, and I am accountable. But 
at the same time, to measure the success of the endangered 
species purely on delisting I don't think is fully accurate 
with the purposes for which the Act was enacted.
    Mr. Duarte. Great. I will move on to Ms. Coit, because I 
have a lot more I would like to talk about. Thank you.
    Ms. Coit. Thank you. I agree with what Director Williams 
said. I do care deeply about the persistence of the lobster 
industry, and working closely with them.
    And, yes, we are responsible to uphold the law, implement 
the law, and to ensure that we have our results when it comes 
to these species that have a multitude of challenges and are on 
the brink of extinction often by the time they are listed.
    Mr. Duarte. Thank you. So, here is the last time the 
Endangered Species Act was reauthorized right here, and that 
was about, what, 40 million acres, or 30 million acres of 
critical habitat? And since it failed to be reauthorized, then 
expired, we have 250 million acres of critical habitat.
    Now, a good chunk of that I know is the 10 percent of 
California's land area that is designated to fairy shrimp 
critical habitat, fairy shrimp and vernal pool critical 
habitat. When we talk about fairy shrimp we are talking about 
sea monkeys, literally--back in the comic books, at least when 
I was a kid. These have survived unevolved since 300 million 
years ago, when the entire surface land area of the globe was 
one continent, Pangaea. I don't believe that we could absent 
the Earth of fairy shrimp species if we tried.
    But nonetheless, in California 10 percent of the land area 
of California, including great swaths of private farmland, are 
designated fairy shrimp critical habitat. Now, Fish and 
Wildlife says what is critical habitat? This is a document I 
can provide. Critical habitat is the specific areas within 
geographic areas occupied by the species that contain physical 
or biological features. Critical habitat, going forward, 
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.
    Is that true today? Are private landowners burdened with 
critical habitat designations today?
    Ms. Williams. Chairman Bentz and Congressman Duarte, in 
fact it is true that the provisions of section 7 for critical 
habitat applied to the nexus of Federal landownership, or if 
there is any funding or grantmaking through that Federal 
agency.
    Mr. Duarte. Thank you.
    Mr. Bentz. The Chair recognizes Representative Dingell for 
5 minutes.
    Mrs. Dingell. Thank you, Mr. Chairman.
    We have a moral obligation to be good stewards of our 
nation's rich wildlife and ensure we can share these iconic 
species with generations of Americans to come.
    Protecting America's wildlife is something that is deeply 
important to me and, quite frankly, something my late husband, 
John Dingell, took to heart. He was an avid outdoorsman, 
angler, and hunter, with a deep appreciation of our country's 
natural resources. And strengthening our nation's conservation 
and environmental policies was a core value to him.
    In fact, as all of you know here, he was the lead author of 
the Endangered Species Act that was enacted 50 years ago. Ten 
years ago, on the Endangered Species Act 40th anniversary, he 
warned of the dangers of partisan bickering and political 
agendas in undermining the survival of the ESA. And, 
unfortunately, today's hearing is kind of an example of that.
    Contrary to this hearing's title, the ESA has really been 
successful in preventing the extinction of at-risk species. 
According to the Center for Biological Diversity, the ESA is 
credited with saving 99 percent of the species it protects from 
extinction. At a time when our nation is facing the compounding 
effects of climate change, habitat loss, pollution, and species 
over-exploitation that all threaten the viability of many 
species of wildlife and plants, we need to redouble our 
conservation efforts, not undermine them.
    I really am concerned about the recent attacks on the ESA 
that we are seeing in the Congress, from attempts to 
congressionally delist imperiled species to attempts to hinder 
Federal agencies' ability to protect species from extinction.
    And wildlife is paying a toll. A report has recently found 
that 49 percent of the bird species worldwide have declining 
populations. And one of the men said to me, ``Butterflies are 
sissy things.'' Well, I don't think the monarch butterfly is, 
and we have seen an 85 percent decline in two decades. This 
should alarm all of us. But it only represents a small fraction 
of the number of species in decline.
    Mr. Ashe, I am going to ask you a few questions. Today, 
there are over 1,600 domestic species listed as threatened or 
endangered under the ESA, yet we only hear about a handful of 
them. Why do only certain species in decline garner such 
emotional responses that lead to conflicts on the merits of the 
ESA?
    Mr. Ashe. My experience, Congresswoman Dingell, is the 
species that generate the most conflict and the most notoriety 
are the ones where we wait until the last minute to really 
seriously address their conservation needs. So, we have heard a 
lot of discussion about proactive conservation measures, and I 
think that is really important, and certainly reflected in the 
work that has been done on the greater sage grouse to try to 
get ahead of the species before it needs the protection of the 
Endangered Species Act.
    The species I think that get the most notoriety, generate 
the most conflict, are the ones that are in the most trouble, 
and where you have the least flexibility in protecting and 
conserving them.
    Mrs. Dingell. So, if I understand you correctly, we know 
that over 99 percent of species under the ESA have not gone 
extinct. But when a species is caught too late, there are too 
few left to rebuild the species, and limited options left for 
recovery.
    So, Mr. Ashe, why are imperiled species like this in such 
bad shape?
    Mr. Ashe. Imperiled species like?
    Mrs. Dingell. The 1 percent, the ones that we all fight 
about.
    Mr. Ashe. Again, mostly in my experience, those are species 
that are habitat-limited species. And we have heard, again, 
discussion about water. Water is habitat for something like the 
delta smelt. And when its availability is limited, those are 
difficult issues to deal with.
    I worry about the polar bear, for instance. There are 
actually a lot of polar bears in the world today, over 20,000, 
but their habitat is going away, and we have no way to create 
sea ice habitat. So, it is those species where habitat is the 
limiting factor that are the most difficult ones to deal with.
    Mrs. Dingell. I am going to be out of time, Mr. Chair, but 
I do want to say I think ESA has been a critical tool. But I 
think it is important to recognize how we can further 
strengthen by doing some things ahead of time, like RAWA, which 
I want to work with all of my colleagues in before species need 
to be listed. Thank you, Mr. Chair, and I yield back.
    Mr. Bentz. The Chair recognizes Congresswoman LaMalfa for 5 
minutes.
    Mr. LaMalfa. Thank you, Mr. Chairman.
    Mr. Vibbert, when you talk about the 500 CFS that is 
required, what stream, what river was that? I am sorry, I 
didn't catch it.
    Mr. Vibbert. Say that again.
    Mr. LaMalfa. The 500 CFS that is required year-round you 
were saying----
    Mr. Vibbert. Right now, under our HCP, we are ramping up to 
eventually what will be 500 CFS over the course of, I think it 
is over the next 3 years. We are at 100 right now, during the 
winter.
    Mr. LaMalfa. OK. What river is this on?
    Mr. Vibbert. This is on the Deschutes River. The little 
Deschutes.
    Mr. LaMalfa. Now, is there a dam on that above the----
    Mr. Vibbert. There is Crane Prairie, which has now been set 
aside strictly for spotted frog nursery, and then Wickiup below 
that. And then it flows into the bend area before it passes 
through to me down in the lower Deschutes.
    Mr. LaMalfa. So, the water running down the river is not 
being stored. Are those reservoirs getting full?
    Mr. Vibbert. No.
    Mr. LaMalfa. They don't fill anymore?
    Mr. Vibbert. No, and we will never fill again because, if 
you do the numbers, if you look at my written testimony, I 
believe by Year 5 the frog will be allotted 187,000 acre-feet, 
and our reservoir holds 200,000. So, anybody with a cork brain 
and a glass eye could tell you it is not going to work.
    Mr. LaMalfa. We have similar on the Klamath and on the 
Trinity, too.
    Mr. Vibbert. Yes, yes, I know. I feel for you.
    Mr. LaMalfa. The farmers I feel for there, as well as the 
generation of electricity.
    In the Weyerhauser v. Fish and Wildlife case a while back 
here, the court had ruled that Fish and Wildlife and NMFS may 
withhold from designated areas as critical habitat if the 
economic impacts outweigh the benefit to the species. So, run 
with that a little bit, OK?
    I need to shift gears here. On FEMA flooding lead-up, we 
have a dire housing shortage in California. So, for 
Administrator Coit and Director Williams, permitting has 
already been required to go through extensive ESA procedure in 
California. Is there anything you can see--there is no longer 
the ability to utilize the letters that were supposed to allow 
development to go forward in the interim. Do you see anything, 
Administrator or Director, that is going to allow those 
agencies to signal that FEMA can proceed with their letter 
reviews while the agencies investigate the program?
    Would you consider something similar to a compliance 
agreement while FEMA works with NOAA and Fish and Wildlife to 
figure out if there is an actual adverse impact?
    Ms. Coit. I will start with that, the answer there. I know 
that is an issue of concern, and I appreciate you raising it.
    As you note, FEMA is the action agency and the party with 
whom we are consulting on that. I do not have a specific answer 
for the question you just posed about the compliance 
agreements, but I am aware of how important it is.
    Mr. LaMalfa. Is that something you can work with us on a 
little bit?
    Ms. Coit. I will look into it and get back to you directly 
on that.
    Mr. LaMalfa. Thank you.
    Director Williams, anything on that?
    Ms. Williams. Congressman LaMalfa, I am very happy to work 
with you on that. But I believe, really, that NOAA has been the 
lead agency there. I am happy to work with you.
    Mr. LaMalfa. OK, thank you.
    In Mr. Wood's testimony, you referenced a PERC study that 
says the recovery rate for species that the Fish and Wildlife 
is predicted to recover is about 4 percent. I am not sure where 
99 percent was coming from earlier. Is this an accurate 
percentage for the recovery of species your agency believe 
would recover?
    Mr. Wood. Yes. What that gets at is the Service predicted 
time wouldn't be the constraint--that they predicted would 
recover by 2023. And our success at recovering those species 
is----
    Mr. LaMalfa. OK. Let me direct that to Ms. Williams, too, 
please.
    Ms. Williams. Congressman LaMalfa, can you ask that 
question again?
    Mr. LaMalfa. As brought out in the PERC study that the 
recovery for species Fish and Wildlife predicted would be 4 
percent. Is that an accurate number that you agree with?
    Ms. Williams. Congressman LaMalfa, the 3 percent, I think 
that PERC is correct in the number of species delisted. But 
then again, the 99 percent are the species that have not gone 
extinct.
    And I am aware of Mr. Wood's chart on the trajectory of 
recovery of species, and I think that it is very accurate that 
with many species, that recovery is a trajectory, and it is a 
continuum, and it doesn't happen overnight due to a number of 
factors, whether it is climate, habitat fragmentation, habitat 
loss, disease, over-utilization of the species.
    Mr. LaMalfa. Right. Thank you.
    My time has flown by. I yield back, Mr. Chairman.
    Mr. Bentz. Mr. Magaziner, you are recognized for 5 minutes.
    Mr. Magaziner. Thank you, Chairman.
    When people ask me how it is serving in Congress, I usually 
say it is pretty good. The people are nice, and it is not 
always as partisan as the media would have you believe. We do 
work together sometimes. But then there are days like this, 
when some of my colleagues are attacking the Endangered Species 
Act. The Endangered Species Act, which has saved some of our 
country's most iconic symbols, from the bald eagle to the 
American alligator, multiple species that have been protected 
by this Act. The Endangered Species Act works. Ninety-nine 
percent of species listed have avoided extinction, as we just 
heard.
    And this historic anniversary of the Act should also remind 
us not only of the progress that we have made, but of our need 
to continue to modernize the Endangered Species Act to align 
with the realities of climate change and the need to preserve 
funding in order to actually enforce and implement measures to 
save our most vulnerable species.
    Protections under the Environmental Species Act are 
premised on strong Federal-State partnerships. And this is 
important. We have seen this in our home state of Rhode Island. 
The orange American burying beetle, one of nature's most 
efficient composters, once thrived across 35 U.S. states, 
virtually disappeared during the 20th century. And Block 
Island, Rhode Island, in my district was one of the few 
remaining refuges left. But thanks to the Endangered Species 
Act, the beetle is now being reintroduced in its former range. 
And that is just one example.
    In Rhode Island, the piping plover population is 
rebounding, as well. The number of nesting pairs of the piping 
plover population has increased ninefold since 1986, when it 
was listed.
    We have heard already about the bald eagle population, 
which reached nationwide lows of 487 nesting pairs, only 487 in 
1963, and have now rebounded dramatically, and are back in 
Rhode Island. That is just another unquestionable Endangered 
Species Act success. And as a result, the bald eagle was 
federally delisted in 2007.
    There is still a risk that climate change will stall the 
progress we have made, so we need to update our tools to act on 
climate change's adverse impacts on species and their habitats. 
And we see this in Rhode Island, we see it all across the 
country: rising sea levels, beach erosion, warming temperatures 
are threatening numerous species of birds, fish, and other 
wildlife, and also the Americans that make a living from 
fishing, including in my district. Climate change threatens 
them, as well. So, we do need to update the Endangered Species 
Act to account for climate risks.
    But, unfortunately, some of my colleagues are trying to 
move in the opposite direction, and water down the ESA, and cut 
the funding that we need to enforce it. And I always think it 
is important that we not paint with a broad brush, again, 
because we don't want to be partisan. And I know that many of 
my colleagues on the other side believe in the Endangered 
Species Act and don't want to see it watered down. But there 
are some who, I swear, if there were five animals left in a 
given species, would want to shoot four of them and pat 
themselves on the back for saving the fifth. And we have to 
move away from that.
    So, for the sake of vulnerable species impacted by climate 
change, and also to protect coastal communities like those I 
represent, we need to support the thousands of people who are 
working and living in coastal communities who need healthy fish 
and animal populations in order to make a living.
    Ms. Coit, can you just talk a little bit about how NOAA 
Fisheries is integrating climate change considerations into the 
policies that you are putting forward?
    Ms. Coit. Certainly, thank you for that question. As you 
mentioned, climate change is negatively affecting threatened 
and endangered species. The marine heatwaves that we are seeing 
are particularly serious when it comes to coral reefs and some 
of our productive habitats.
    We are required to make decisions based on the best 
available science, so we are taking a look at the climate 
change impacts to the ecosystems and the habitats as part of 
our decision-making, and we are working on things like the 
Climate Ecosystem Fisheries Initiative to try to both expand 
our scientific understanding and do a better job of predicting.
    Mr. Ashe mentioned the loss of sea ice. Predicting what is 
going to happen so that we can make sure that we make decisions 
that are appropriate for conservation----
    Mr. Magaziner. And quickly, as we head into appropriations 
season, can you just speak to the importance of sufficient 
resources to enforce the Act?
    Ms. Coit. Yes. Without the resources, from the listing 
decisions, to the recovery plans, to the consultations that are 
needed for the projects that support our infrastructure, we are 
not able to do our jobs. So, we need sufficient funding if we 
are going to succeed in implementing the Endangered Species Act 
in a way that is going to promote conservation of species and 
also the economic objectives of this country.
    Mr. Magaziner. Thank you, I yield back.
    Mr. Bentz. Congresswoman Hageman is recognized for 5 
minutes.
    Ms. Hageman. Thank you.
    Since the Endangered Species Act was first passed in 1973, 
only about 3 percent of species have been delisted, not because 
they haven't recovered, but because the U.S. Fish and Wildlife 
Service and a variety of environmental groups have a vested 
interest in keeping them on the list.
    The gray wolf and the grizzly bear in Wyoming, as well as 
the gray wolf and the Preble's jumping mouse are just 
additional examples of this. In fact, the greater Yellowstone 
grizzly bear has been recovered for well over a quarter of a 
century in Wyoming, yet we are still not able to get it 
delisted.
    Mr. Brian Nesvik from the Wyoming Game and Fish Department 
has been at the forefront of these recovery efforts for almost 
30 years. He testified just a few months ago on the current 
state of the greater Yellowstone grizzly. Specifically, he 
highlighted the fact that the species has not only recovered 
far beyond the recovery threshold, but has also expanded far 
beyond its suitable range. Human-bear conflict potential has 
risen exponentially with this expansion in range.
    In 2020, nearly 8,000 square miles of grizzly bear range 
was outside of the designated management area, including on 
private lands. Just last week, a large male grizzly wandered 
within 20 miles of Billings, Montana. People now deal directly 
with grizzly bears that have wandered into rural and 
agricultural areas. These same people were once promised that 
the bears would not be allowed to permanently occupy the lands 
where they work, live, and recreate on a daily basis. And 
unless we choose to act, this promise will remain broken, and 
these populations will continue to expand completely unmanaged. 
The Fish and Wildlife Service, in fact, has found that the 
greater Yellowstone ecosystem is fully saturated with grizzly 
bears, and that they exceed the numbers that are healthy for 
that particular area.
    Director Williams, considering the fact that the state of 
Wyoming has invested over $59 million in grizzly bear recovery 
and management, going from 136 bears in 1973 to over 1,100 
currently, which is double the recovery numbers that was part 
of the recovery plan, do you support transitioning to the 
Wyoming State Management Plan and delisting the grizzly bear?
    Ms. Williams. Chairman Bentz, Congresswoman Hageman, as we 
have had these conversations before, I absolutely support the 
transition to state management. And at the same time, the Fish 
and Wildlife Service must adhere to the five factors for 
delisting for grizzly bears.
    And we had previously proposed delisting the greater 
Yellowstone ecosystem for grizzly bears, and the district court 
rejected that delisting. And now we have a petition before us 
from Wyoming, where we are going through those factors and have 
to look at not only the numbers of the bears, but also the 
other factors of the statute. And we are doing that right now.
    Ms. Hageman. Ms. Williams, are you intentionally pushing 
grizzly bears onto private lands?
    Ms. Williams. Chairman Bentz, Congressman Hageman, indeed, 
I am not pushing grizzly bears onto private land. As we know, 
many of these species do not distinguish between political 
boundaries or landowners.
    Ms. Hageman. Well, I understand that, but that is why we 
have recovery plans, and geographic areas, and identify 
critical habitat, and those sorts of things.
    Mr. Vibbert, I understand your frustrations. Washington, DC 
is full of people who don't understand the on-the-ground 
situation, whether it has to do with climate, or weather, or 
property, or vegetation, or water. And as a result, they 
oftentimes are making decisions that are not based upon the on-
the-ground situation, but are actually counterproductive to 
recovery and protection of the species. And I have seen this in 
a variety of contexts.
    So, again, I understand the frustration that you have with 
what is happening to your own property and your own situation. 
Can you provide us with a bit more detail about how you have 
been impacted by the Endangered Species Act?
    Mr. Vibbert. Actually, right before I came in here I got a 
phone call from Millborn Seed in South Dakota asking me how my 
purple coneflower looked this year. I have 110 acres of it. I 
was supposed to be the guy to put it out for the Monarch 
Corridor for this next year.
    And because everything in agriculture, timing is 
everything. And we had a period where we had to stop our 
canals, and then go off a live river flow because Wickiup had 
been completely drained. And I know we are going through a 
drought. My family has seen lots of them in 131 years, but 
nothing like this because we have something else sucking it 
down at a time when it is asleep in the ground.
    So, I had to tell them I am not going to have the poundage 
for them that they wanted because it is a perennial crop and it 
didn't come up in time during our season. We have a very unique 
system, a microclimate, 85 degrees during the day, 30 at night. 
There is only one other place in the world, and that is in 
Chile, in the shadows of the Andes Mountains. It is going to 
cost me around $350,000 in lost revenue.
    Ms. Hageman. And also an impact on the monarch butterfly.
    Mr. Bentz. The gentlelady's time has expired.
    Ms. Hageman. Thank you. I yield back.
    Mr. Bentz. The Chair now recognizes Congressman Beyer for 5 
minutes.
    Mr. Beyer. Mr. Chairman, thank you very much, and thank you 
for welcoming me to the Committee.
    Director Williams, I think we all recognize that the 
Endangered Species Act is a balancing act with many different 
concerns that citizens have. We have heard again and again 
today that only 3 percent of these species over these many 
years have actually been delisted. I think it was Mr. Wood who 
said in the original legislation it talked about bringing any 
listed species to the point of which ESA regulations are no 
longer necessary.
    What is your perspective on what we have often called the 
most successful piece of legislation in American history? Is it 
99 percent successful, or is it dramatically disappointing 
because only 3 percent have been delisted?
    Ms. Williams. Mr. Chair and Congressman Beyer, that is 
quite a question.
    I think I would restate that the Endangered Species Act is 
indeed more important now than ever, and in some respects it 
has been remarkably successful in preventing extinction. We 
have talked about the species we have prevented from blinking 
out and those that have been delisted. And in between there is 
this continuum of species that need the conservation efforts 
that come to play with the Endangered Species Act. And I think, 
by and large, those are remarkably successful. They take time, 
they take work, they take many, many partnerships. And I still 
think that they are worth it.
    But, as you say, we also at the Fish and Wildlife Service 
are very careful to be close to communities, paying attention 
to communities and people, while at the same time following the 
science and the law. So, I think the Endangered Species Act is 
incredibly important, incredibly successful, but it is a 
challenge, and it is something that we can always work to 
improve, and work together to do a better job.
    Mr. Beyer. Congresswoman Hageman mentioned, when she was 
asking about the grizzly bear, that there were five specific 
goals that had to be--were these in the legislation? Are they 
too conservative?
    Again, asking you, Director Williams.
    Ms. Williams. Thank you, Mr. Chair and Congressman Beyer. 
Indeed, they are. They are the five factors that are set out in 
the Endangered Species Act section 4 for listing and delisting. 
They are the same factors. And I think they were prescient, and 
I think that they are completely applicable today.
    And some of the challenges of getting to delisting are 
sometimes the focus on delisting alone, instead of the whole 
continuum of recovery. But I think they are still applicable 
today.
    Mr. Beyer. Thank you.
    Director Ashe, I want to welcome you back. And your 
incredible work on ivory in years past was heroic, and we are 
very grateful for that. When you were Director, we had the 
blanket 4(d) rule for Fish and Wildlife. It was repealed in the 
Trump administration, and replaced in the Biden administration. 
What is your feeling on it right now?
    How do you respond to the criticism from my Republican 
friends that just by treating a species as threatened, you 
could always go to endangered species for individual species 
that really need it, that we restrict our flexibility by doing 
the blanket rule.
    Mr. Ashe. I think that in my view, the Fish and Wildlife 
Service's ability to promulgate a special rule, a 4(d) rule for 
a threatened species, and the framework they set in place, 
where when you list a species as threatened the default is that 
all of the protections of the law apply unless you sculpt them 
to the needs of that species, and I think the Fish and Wildlife 
Service then, and the Fish and Wildlife Service now is very 
innovative in the application of 4(d) rules.
    And as an administrator, I would say it is a much better 
position to be in to be loosening a restriction than adding a 
restriction, from an administrative and a regulatory 
standpoint. So, I applaud them for reinstating that rule. I 
think it actually makes the threatened species designation 
meaningful, but also allows you to sculpt the regulations as 
necessary.
    Mr. Beyer. Thank you very much.
    And Director Williams, again, one of the things that former 
Director Ashe complained about was the incredible delay times 
on permits. Why is that? What can we do at Fish and Wildlife to 
make permitting happen in a non-bureaucratic way?
    Ms. Williams. Mr. Chair, Congressman Beyer, thanks for that 
question.
    I think Mr. Ashe provided one of the answers in that our 
international affairs program has been chronically starved, and 
not always supported by other administrations. So, I have 
worked very hard to reconstitute that program, provide them the 
leadership that they need. And we have been having meetings 
with AZA to try to get to a better spot with our permits. But 
we have been under-staffed. These are complicated, and I think 
we can find a better path forward.
    Mr. Beyer. Thank you, Mr. Chairman. I yield back.
    Mr. Bentz. The Chair recognizes Congresswoman Boebert for 5 
minutes.
    Mrs. Boebert. Thank you, Mr. Chairman.
    Mr. Wood, can you please elaborate on why the Biden 
administration rescinding important ESA reforms made by the 
Trump administration that modernized the ESA, including the 
regulatory definition of ``habitat,'' are misguided and bad for 
rural America?
    Mr. Wood. Sure. As I discuss my written testimony and 
discussed today, the only place critical habitat can really 
provide value is areas where the land triggers that Federal 
nexus, it is going to require a Federal permit to damage 
existing habitat features. It cannot serve to encourage the 
restoration of habitat or the active maintenance of habitat.
    Trump's definition of ``habitat,'' which we had some 
disagreements with on the margin, but was overall correct in 
saying habitat is only those areas suitable for a species, 
serves to make it easier to designate precisely those areas 
where critical habitat doesn't work and, worse, creates 
perverse incentives by making the potential to establish 
habitat a liability for landowners.
    Mrs. Boebert. Thank you. I am going to come back to you in 
just a second.
    Director Williams, should the gray wolf be delisted in the 
Lower 48?
    Ms. Williams. Mr. Chair, Congresswoman Boebert, we are in 
the midst of petitions and litigation on that very issue.
    Mrs. Boebert. Would you agree that they need to be 
delisted?
    Ms. Williams. When they meet the five criteria of the 
Endangered Species Act, yes.
    Mrs. Boebert. There are over 6,000 wolves in the Lower 48 
United States, and the initial agency recovery goal was 650 
wolves. So, both Obama and the Biden administrations have 
supported delisting the gray wolf, including when Mr. Ashe was 
Director. It shouldn't take an Act of Congress or more than a 
decade to delist a recovered species. So, I would say that that 
has met that criteria. And you are saying, once it meets that 
criteria, then, yes, it should be delisted. And I would say 
that this takes away from our precious resources, from other 
species that actually need our help that are on the Endangered 
Species Act.
    And Mr. Wood, back to you. Are you aware of a statutory 
provision that authorizes the Fish and Wildlife Service to 
require mitigation under section 7?
    Mr. Wood. Nothing that explicitly requires it. But under 
section 7 they have to consult over Federal projects.
    Mrs. Boebert. OK. Or do you agree that section 7 does not 
include the words ``mitigation'' or ``offsets,'' and such 
requirements for section 7 were never authorized by Congress?
    Mr. Wood. I believe, with the first part, from what I 
understand, often mitigation is proposed by Federal agencies as 
a way to avoid more extensive consultations. So, there is some 
uncertainty there.
    But you are right that the words, I believe, don't appear 
in that section of the statute.
    Mrs. Boebert. Thank you.
    Director Williams, why did Fish and Wildlife Service not 
allow public review and not allow public comment for its 
recently-released ESA compensatory mitigation policy?
    Ms. Williams. Mr. Chair, Congresswoman Boebert, we follow 
the Administrative Procedures Act, the law, when we put forward 
any rulemaking. And I don't believe that APA applies to 
mitigation policies. So, we did follow the law in putting those 
forward.
    Mrs. Boebert. Why is it that the Fish and Wildlife Service 
is proposing to burden landowners with onerous ESA-related 
prohibitions when the agency has insufficient information to 
support a listing of the dunes sagebrush lizard?
    Ms. Williams. Mr. Chair, Congresswoman Boebert, indeed, I 
have spent a long time, a career of working on the dunes 
sagebrush lizard. I am looking at my previous colleague, Mr. 
Ashe, and the science was very clear on the dunes sagebrush 
lizard. In fact, I brought with me the proposed listing.
    What happened with dunes sagebrush lizard is an example of 
the positive conservation outcomes of the possibility of a 
listing happening that didn't happen. And they could be extinct 
in all of their range.
    Mrs. Boebert. So, I would say this is yet another species 
of whom it appears the Fish and Wildlife Service is basing a 
listing decision on the precautionary principle. The Service 
appears to be speculating about the future trends, even while 
it admits it can't be certain because of the species habitat, 
and it is on private lands.
    Ms. Williams. If that is a question, Congresswoman Boebert, 
indeed, a threatened status talks about foreseeable future, but 
endangered status does not. Those are threats before us right 
now to the dunes sagebrush lizard's habitat.
    Mrs. Boebert. As long as we could get the actual recovered 
species off of the list, then I think we can make a lot of 
progress.
    Mr. Chairman, I yield.
    Mr. Bentz. Thank you. The Chair recognizes himself for 5 
minutes.
    It shouldn't be too surprising that the caption of our 
hearing prompted defensive remarks. But that wasn't the goal. 
The goal is to have folks who know talk about the cost that 
this Act imposes over and above that which the agencies are 
spending.
    So, I am just going to ask first, Director Williams, if you 
believe that the ESA listing of the frog has cost the Oregon 
community money. We have heard a very clear statement of it 
from one of our witnesses today. I simply need somebody from 
the government to acknowledge that this law is causing 
communities and others to bear a cost. Can you say that that is 
the case?
    Ms. Williams. Mr. Chair, indeed, today I have heard that, 
and I look forward to visiting even more. And there can be 
costs to communities. And as we discussed yesterday, there also 
can be benefits.
    Mr. Bentz. Yes, and there have been enormous costs. Let's 
talk about the spotted owl. Can you give us the cost to the 
forest industry in Oregon of the listing of the spotted owl?
    Ms. Williams. Mr. Chair, indeed, that happened before my 
time as the Director.
    Mr. Bentz. Would you agree that it was in the billions?
    Ms. Williams. In the millions?
    Mr. Bentz. Billions.
    Ms. Williams. In the billions? I do not know the answer to 
the direct cost.
    Mr. Bentz. OK, well, how about the indirect cost?
    I simply need the agencies who are in charge of this law to 
acknowledge that it costs, when implemented, billions of 
dollars in many situations, especially when we talk about our 
forests. Can you agree with that?
    Ms. Williams. Mr. Chair, as we talked about, yes, we 
produce reports.
    Mr. Bentz. No, stop. I have the report right here. I am 
about to ask you about it.
    Ms. Williams. Great.
    Mr. Bentz. I want to know about the impact of your 
implementation of the Endangered Species Act. Does it cost 
communities, in many cases, billions?
    And, by the way, your cohort needs to get ready, because I 
am going to ask her the same question, Deputy Administrator 
Coit.
    Ms. Williams. Mr. Chair, I cannot answer that question.
    Mr. Bentz. That is fine, but one of the things I am going 
to suggest, and as I told you yesterday, I propose an amendment 
to the Endangered Species Act at the very end, the last 
paragraph, where you are to provide a report on your cost. I 
think you should also be reporting on society's cost in 
general.
    And, again, I don't want to get into a debate about the 
benefits. Those are already a given by virtue of the existence 
of the law.
    Deputy Administrator Coit, NOAA Fisheries published a 
recovery plan for the right whale in 2005 that stated the total 
estimated cost of recovery cannot be determined, as it will 
likely take numerous decades and many management activities 
that are currently impossible to predict. Studies, however, 
show that vessel speed restrictions, which are being proposed 
by your agency, these restrictions could result in a loss of 
340,000 American jobs, and nearly $84 billion--billion--in 
economic contributions. Do you agree or disagree?
    Ms. Coit. Those are not numbers that I can agree with. We 
have an economic assessment of the cost of the proposed vessel 
speed rule, and we are updating that as we look at the comments 
in the rule. But it is nowhere near that number.
    Mr. Bentz. Yes. If I recall correctly, it was like $24 
million, as opposed to $84 billion. So, you are off just a bit.
    I want to shift to Mr. Jahnz. I know up in my part of the 
world in Oregon, the local utilities had to move all of their 
power lines away from crossing vast expanses of sagebrush and 
over adjacent to county roads, following the county roads in 
the most jabberwocky way I have ever seen in my life, the 
purpose of which was to assist the sage grouse, we hope.
    There is no doubt in the world that the ratepayers are 
paying for that. Is the same thing true, is your utility having 
to pay for protections, shall we say, implemented by those in 
charge of the Endangered Species Act?
    Mr. Jahnz. Chairman, at this point we haven't had to do a 
lot of that. But I have to tell you that, as I sat here today 
and listened to the commentary from my fellow witnesses, I am 
reminded of President Reagan's comment, ``In the current 
crisis, government is not the solution, government is the 
problem.''
    And I think as we think about the Endangered Species Act 
and the intention of it, it is meant to improve the situation, 
it is meant to save these resources. And the voluntary acts of 
organizations like East Central Energy are moving forward 
without government intervention, and they are solving the 
problem. We are envisioning a habitat in our rights-of-way that 
promote monarch habitat, that promote diversity of species, and 
we are doing all of it without restriction.
    Mr. Bentz. And I am very happy that you are doing that, but 
the purpose of this hearing is to call out the cost of the Act, 
so that people don't just blissfully overlook that which is 
imposed upon the folks that have to bear the burden, many of 
them in the West, of these Acts.
    With that, I yield back and I recognize Congressman Pfluger 
for 5 minutes.
    Mr. Pfluger. Thank you, Mr. Chairman. Thank you for letting 
me waive on to this Committee. As you know, I represent the 
11th Congressional District in Texas, which encompasses a large 
part of the Permian Basin in West Texas.
    I am extremely disappointed to see the dunes sagebrush 
lizard as a listed endangered species at this point. The day 
before we celebrate our nation's independence, the U.S. Fish 
and Wildlife Service announced that it would be proposing the 
listing of the dunes sagebrush lizard as an endangered species 
under the ESA. And I believe this is, once again, Mr. Chairman, 
an attack, a weaponization of a Federal agency, and 
specifically against the most prolific energy-producing region 
in the world.
    I do have many questions, but before I get to them there 
has been a tremendous effort, both by the state and private 
stakeholders in initiatives to protect this particular species. 
And quite frankly, this proposal is a slap in the face of 
conservationists who are in that area, who have lived and 
worked in that area for many, many years, who know that area. 
And like many other agencies that I talk to, the response I get 
when, ``When was the last time you visited the Permian 
Basin''--and I will ask you, Director Williams, when was the 
last time you visited the Permian Basin?
    Ms. Williams. Mr. Chair, Congressman Pfluger, actually, I 
lived in Oklahoma for a long time, but I have not visited it in 
the past 2 years.
    Mr. Pfluger. Thank you, OK.
    And Mr. Chairman, that is generally the response I get.
    Director Williams, is this listing in response to a 
negotiated settlement?
    Ms. Williams. Mr. Chair, no, this listing is not in 
response to a negotiated settlement. It is due to the science 
and the law.
    Mr. Pfluger. Were there other private parties that were 
part of this listing?
    Ms. Williams. Mr. Chair, no, in fact, there are private 
parties who the Service has worked with over decades, like you 
mentioned, where we have worked to streamline compliance 
options like candidate conservation agreements, safe harbor 
agreements, habitat conservation plans. So, we have been 
working with private parties in these conservation efforts.
    Mr. Pfluger. And Director Williams, are you an advocate for 
renewable energy?
    Ms. Williams. Mr. Chair, Congressman, indeed, yes, 
renewable energy is important.
    Mr. Pfluger. Can you tell us the impact that this will have 
on renewable sources of energy, such as wind and solar, and the 
building of wind and solar?
    Ms. Williams. Mr. Chair, Congressman Pfluger, there are 
times where the Fish and Wildlife Service, we make our 
decisions based on the science and the law, and are working 
with individuals the best we can to ameliorate any impacts.
    In this instance, the loss of shinnery oak habitat that the 
dunes sagebrush lizard relies on is irreversible. We have not 
found a way to recreate that habitat.
    Mr. Pfluger. Will you provide the Committee with a list of 
peer-reviewed group representatives, their affiliations that 
reviewed the dunes sagebrush lizard?
    Ms. Williams. Mr. Chair, Congressman Pfluger, absolutely.
    Mr. Pfluger. You talk about the science. I am questioning 
your science. I am going to go ahead and just say it out loud. 
I am questioning your science here, because the report on the 
DSL done at the end of 2022 shows that there has been a net 
conservation gain for this particular species. And these 
private and state-led conservation efforts are working, yet the 
Service still listed the DSL, the dunes sagebrush lizard. So, 
how does the Service decide to list this species where 98 
percent of the lands have a private supplemental conservation 
effort?
    Ms. Williams. Mr. Chair, Congressman Pfluger, it is 
wonderful when conservation agreements can help with the 
species. And, indeed, perhaps there are benefits to that, but 
not enough to bring the species to the point where it doesn't 
need to be listed.
    Mr. Pfluger. There have been hundreds of millions of 
dollars spent in an effort to do real conservation. And I am 
questioning because you haven't been to the Permian Basin 
recently, and I am very disappointed in that, to tell you the 
truth, similar to the Secretary of Energy, similar to FERC, 
similar to the EPA, similar to many other agencies.
    But will you please answer this? Was this species listed in 
an attempt to kill the fossil fuel industry?
    Ms. Williams. Mr. Chair, Congressman Pfluger, absolutely 
not.
    Mr. Pfluger. So, you will share the peer-reviewed documents 
and the science, because the stakeholders in my area, who have 
a vested interest in providing affordable, reliable energy to 
this country have reported back that none of that has actually 
been done, that the stakeholder communication, that the work 
between Fish and Wildlife at the state and local level has not 
happened. So, I am questioning your science.
    And Mr. Chairman, I would like to see the documents, the 
peer-reviewed documents that Fish and Wildlife Service has.
    Ms. Williams. Mr. Chair, Congressman Pfluger, as the 
Director of the Fish and Wildlife Service, I do want to take 
this opportunity to support the hardworking employees of the 
Fish and Wildlife Service, and the science and the work that 
they put into this, and that is not questionable. You may 
question me, but I will not question our employees.
    Mr. Pfluger. My time is expired, Mr. Chairman. Thank you. I 
yield back.
    Mr. Bentz. With that, I thank the witnesses for their 
testimony and the Members for their questions.
    Members may have additional questions for the witnesses, 
and I ask that they respond to these in writing. Under 
Committee Rule 3, members of the Committee must submit 
questions to the Subcommittee Clerk by 1 p.m. Eastern Time on 
Friday, July 21. The hearing record will be held open for ten 
business days for these responses.
    If there is no further business, without objection, the 
Subcommittee stands adjourned.

    [Whereupon, at 4:13 p.m., the Subcommittee was adjourned.]

            [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

Submission for the Record by Reps. Bentz and Westerman

                  Associated Builders and Contractors

                             Washington, DC

                                                  July 24, 2023    

Hon. Cliff Bentz, Chairman
Hon. Jared Huffman, Ranking Member
House Natural Resources Committee
Subcommittee on Water, Wildlife and Fisheries
1324 Longworth House Office Building
Washington, DC 20515

    Dear Chairman Bentz, Ranking Member Huffman, and Members of the 
Subcommittee on Water, Wildlife and Fisheries:

    On behalf of Associated Builders and Contractors, a national 
construction industry trade association with 68 chapters representing 
more than 22,000 members, we appreciate your efforts to examine the 
Endangered Species Act and thank you for holding the hearing, ``ESA at 
50: The Destructive Cost of the ESA'' last week.

    Additionally, ABC thanks the Western Caucus' for launching the 
Endangered Species Act Working Group and supports its goals to examine 
how the ESA is implemented by federal agencies, the practical impacts 
on the American people, how litigation is driving ESA decision-making, 
and how success is defined under the ESA.

    ABC supports the Endangered Species Act's purpose of protecting 
species threatened with extinction and recognizes the need for science-
based, data-driven actions that conserve those species and the habitats 
on which they depend. ABC knows that much-needed reforms to modernize 
the ESA and make ESA consultations more efficient and effective will be 
required as the Biden administration looks to implement over $1 
trillion in federal spending for critical infrastructure, energy and 
technology projects throughout the country. The ABC-supported RESTART 
Act (S. 1449), introduced in the U.S. Senate, addresses some of the 
much-needed reforms to the ESA to make the consultation process more 
efficient. S. 1449 would shorten timelines for consultations and allow 
states to assume the responsibility of consultations under the ESA to 
allow for more local input and reduce the burden on the federal 
government. ABC encourages this subcommittee to consider the RESTART 
Act and further efforts to improve and modernize the ESA to better 
serve our nation's communities and endangered species.

    ABC members stand ready for the opportunity to build and maintain 
America's infrastructure to the benefit of the communities that it will 
serve and appreciates your consideration of our concerns.

            Sincerely,

                                        Kristen Swearingen,
                    Vice President, Legislative & Political Affairs

                                 ______
                                 

Submission for the Record by Rep. Grijalva

                    Center for Biological Diversity

                                                  July 17, 2023    

Re: Natural Resources Committee Hearing on the Endangered Species Act 
        at 50

Dear Chairman House Natural Resources Committee Member:

Nearly 50 years ago, President Nixon signed what has become one of the 
world's most successful conservation laws--the U.S. Endangered Species 
Act. In a short but powerful statement, Nixon declared:

        Nothing is more priceless and more worthy of preservation than 
        the rich array of animal life with which our country has been 
        blessed. It is a many-faceted treasure, of value to scholars, 
        scientists, and nature lovers alike, and it forms a vital part 
        of the heritage we all share as Americans. I congratulate the 
        93d Congress for taking this important step toward protecting a 
        heritage which we hold in trust to countless future generations 
        of our fellow citizens. Their lives will be richer, and America 
        will be more beautiful in the years ahead, thanks to the 
        measure that I have the pleasure of signing into law today.\1\1
---------------------------------------------------------------------------
    \1\ Richard Nixon, Statement on Signing the Endangered Species Act 
of 1973. Online by Gerhard Peters and John T. Woolley, The American 
Presidency Project https://www.presidency.ucsb.edu/node/255904

Since its enactment in 1973, the Act has saved countless imperiled 
species from extinction and has put hundreds more on the road to 
recovery. Thanks to the Endangered Species Act, iconic species like the 
humpback whale, bald eagle, and snail darter are still with us today. 
And along the way it has protected millions of acres of forests, 
mountains, rivers, deserts, beaches and oceans--as well as the fragile, 
fascinating and interconnected web of life. Simply put, it is our most 
powerful tool to combat the extinction crisis and stem the loss of 
---------------------------------------------------------------------------
biodiversity currently facing our country and the global community.

The Endangered Species Act is also incredibly popular with the American 
public, which overwhelmingly supports the law. Nine out of 10 Americans 
support protections for endangered species and the Act, recognizing the 
importance of preserving our nation's biodiversity.

Today's hearing should be a celebration of the Act's stunning record of 
success. Instead, anti-wildlife Members of Congress are doing 
everything they can to undermine the law and shove species closer 
towards extinction. So we face a choice. We can starve and emaciate 
this landmark law to the point of uselessness and rob future 
generations of wolves, bears, turtles, and sage grouse, or we can 
protect and strengthen the Act, continuing to save the natural world 
around us for another 50 years and honoring our commitment to save each 
and every species from the oblivion of extinction.

            Sincerely,

                                          Stephanie Kurose,
                                           Senior Policy Specialist

                                 *****

                               ATTACHMENT

                         A Promise to the Wild:
                       The Endangered Species Act
                   50 Years of Extraordinary Success

The letter with full pictorial report can be viewed on the Committee 
Repository at:

https://docs.house.gov/meetings/II/II13/20230718/116150/HHRG-118-II13-
20230718-SD004.pdf

                                 [all]