[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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
52-976 PDF WASHINGTON : 2024
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
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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
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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.
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\1\ The Endangered Species Act of 1973 (16 U.S.C. Sec. Sec. 1531).
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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).
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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
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\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
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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
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