[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
H.R. 520, H.R. 2990, H.R. 5103,
H.R. 5504, H.R. 5509, H.R. 5874, AND H.R. 6008
=======================================================================
LEGISLATIVE HEARING
BEFORE THE
SUBCOMMITTEE ON WATER, WILDLIFE AND FISHERIES
OF THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
Wednesday, October 25, 2023
__________
Serial No. 118-73
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC 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
53-922 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,
Tom McClintock, CA CNMI
Paul Gosar, AZ Jared Huffman, CA
Garret Graves, LA Ruben Gallego, AZ
Aumua Amata C. Radewagen, AS Joe Neguse, CO
Doug LaMalfa, CA Mike Levin, CA
Daniel Webster, FL Katie Porter, CA
Jenniffer Gonzalez-Colon, PR Teresa Leger Fernandez, NM
Russ Fulcher, ID Melanie A. Stansbury, NM
Pete Stauber, MN Mary Sattler Peltola, AK
John R. Curtis, UT Alexandria Ocasio-Cortez, NY
Tom Tiffany, WI Kevin Mullin, CA
Jerry Carl, AL Val T. Hoyle, OR
Matt Rosendale, MT Sydney Kamlager-Dove, CA
Lauren Boebert, CO Seth Magaziner, RI
Cliff Bentz, OR Nydia M. Velazquez, NY
Jen Kiggans, VA Ed Case, HI
Jim Moylan, GU Debbie Dingell, MI
Wesley P. Hunt, TX Susie Lee, NV
Mike Collins, GA
Anna Paulina Luna, FL
John Duarte, CA
Harriet M. Hageman, WY
Vivian Moeglein, Staff Director
Tom Connally, Chief Counsel
Lora Snyder, Democratic Staff Director
http://naturalresources.house.gov
------
SUBCOMMITTEE ON WATER, WILDLIFE AND FISHERIES
CLIFF BENTZ, OR, Chairman
JEN KIGGANS, VA, Vice Chair
JARED HUFFMAN, CA, Ranking Member
Robert J. Wittman, VA Grace F. Napolitano, CA
Tom McClintock, CA Mike Levin, CA
Garret Graves, LA Mary Sattler Peltola, AK
Aumua Amata C. Radewagen, AS Kevin Mullin, CA
Doug LaMalfa, CA Val T. Hoyle, OR
Daniel Webster, FL Seth Magaziner, RI
Jenniffer Gonzalez-Colon, PR Debbie Dingell, MI
Jerry Carl, AL Ruben Gallego, AZ
Lauren Boebert, CO Joe Neguse, CO
Jen Kiggans, VA Katie Porter, CA
Anna Paulina Luna, FL Ed Case, HI
John Duarte, CA Raul M. Grijalva, AZ, ex officio
Harriet M. Hageman, WY
Bruce Westerman, AR, ex officio
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CONTENTS
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Page
Hearing held on Wednesday, October 25, 2023...................... 1
Statement of Members:
Bentz, Hon. Cliff, a Representative in Congress from the
State of Oregon............................................ 2
Huffman, Hon. Jared, a Representative in Congress from the
State of California........................................ 3
Bonamici, Hon. Suzanne, a Representative in Congress from the
State of Oregon............................................ 5
McClintock, Hon. Tom, a Representative in Congress from the
State of California........................................ 6
Newhouse, Hon. Dan, a Representative in Congress from the
State of Washington........................................ 7
Porter, Hon. Katie, a Representative in Congress from the
State of California........................................ 8
Ciscomani, Hon. Juan, a Representative in Congress from the
State of Arizona........................................... 10
Statement of Witnesses:
Frazer, Gary, Assistant Director for Ecological Services,
U.S. Fish & Wildlife Service, Department of the Interior,
Washington, DC............................................. 11
Prepared statement of.................................... 13
Questions submitted for the record....................... 17
Birmingham, Tom, Water Policy Expert, Sacramento California.. 18
Prepared statement of.................................... 20
Megdal, Sharon B., Director, Water Resources Research Center,
University of Arizona, Tucson, Arizona..................... 21
Prepared statement of.................................... 23
Questions submitted for the record....................... 28
Taylor, Barbara, Red List Coordinator for the Cetacean
Specialist Group, International Union for the Conservation
of Nature, San Diego, California........................... 31
Prepared statement of.................................... 32
Questions submitted for the record....................... 37
Roady, Stephen, Senior Lecturing Fellow, Duke University
School of Law, Professor of the Practice, Duke School of
the Environment, Washington, DC............................ 40
Prepared statement of.................................... 41
Questions submitted for the record....................... 47
Beal, Robert E., Executive Director, Atlantic States Marine
Fisheries Commission, Arlington, Virginia.................. 51
Prepared statement of.................................... 53
Wood, Jonathan, Vice President of Law and Policy, Property
and Environment Research Center, Bozeman, Montana.......... 56
Prepared statement of.................................... 58
Questions submitted for the record....................... 70
Loureiro, Alex, Scientific Director, EnerGeo Alliance,
Houston, Texas............................................. 73
Prepared statement of.................................... 74
Supplemental testimony submitted for the record.......... 81
Questions submitted for the record....................... 96
Additional Materials Submitted for the Record:
Bureau of Ocean Energy Management, Statement for the Record
on H.R. 6008............................................... 111
National Marine Fisheries Service, NOAA, Statement for the
Record on H.R. 520, H.R. 5103, H.R. 5504, H.R. 2990, and
H.R. 6008.................................................. 113
U.S. Geological Survey, DOI, Statement for the Record on H.R.
5874....................................................... 116
Submissions for the Record by Representative Bentz
Pet Advocacy Network, Letter of Support for H.R. 5504.... 118
Submissions for the Record by Representative Huffman
Defenders of Wildlife, One-Pager on the Endangered
Species Act............................................ 120
Environmentalist Stakeholders, Letter in Opposition to
H.R. 6008.............................................. 121
Environmentalist Stakeholders, Letter in Opposition to
H.R. 5504.............................................. 123
Environmentalist Stakeholders, Letter in Opposition to
H.R. 520............................................... 125
Submissions for the Record by Representative Donalds
Atlantic States Marine Fisheries Commission, Letter of
Support for H.R. 5103.................................. 129
Gulf States Marine Fisheries Commission, Letter of
Support for H.R. 5103.................................. 130
Angler Action Foundation, Letter of Support for H.R. 5103 131
Florida Fish and Wildlife Conservation Commission, Letter
of Support for H.R. 5103............................... 132
Sanibel-Captiva Conservation Foundation, Letter of
Support for H.R. 5103.................................. 133
Submissions for the Record by Representative Newhouse
National Association of Home Builders, Letter of Support
for H.R. 5504.......................................... 134
LEGISLATIVE HEARING ON H.R. 520, TO AMEND THE ENDANGERED
SPECIES ACT OF 1973 TO PROVIDE THAT ARTIFICIALLY PROPAGATED
ANIMALS SHALL BE TREATED THE SAME UNDER THAT ACT AS NATURALLY
PROPAGATED ANIMALS, AND FOR OTHER PURPOSES; H.R. 2990, TO AMEND
THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2017 TO
ADDRESS SEXUAL HARASSMENT INVOLVING NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION PERSONNEL, AND FOR OTHER PURPOSES,
``NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION SEXUAL
HARASSMENT AND ASSAULT PREVENTION IMPROVEMENTS ACT OF 2023'';
H.R. 5103, TO REQUIRE THE DIRECTOR OF THE OFFICE OF MANAGEMENT
AND BUDGET TO APPROVE OR DENY SPEND PLANS WITHIN A CERTAIN
AMOUNT OF TIME, AND FOR OTHER PURPOSES, ``FISHERY IMPROVEMENT
TO STREAMLINE UNTIMELY REGULATORY HURDLES POST EMERGENCY
SITUATION ACT'' OR ``FISHES ACT''; H.R. 5504, TO REQUIRE THE
DIRECTOR OF THE UNITED STATES FISH AND WILDLIFE SERVICE AND THE
ASSISTANT ADMINISTRATOR FOR FISHERIES OF THE NATIONAL OCEANIC
AND ATMOSPHERIC ADMINISTRATION TO WITHDRAW PROPOSED RULES
RELATING TO THE ENDANGERED SPECIES ACT OF 1973, AND FOR OTHER
PURPOSES; H.R. 5509, TO MODERNIZE PERMITTING SYSTEMS AT THE
DEPARTMENT OF THE INTERIOR, AND FOR OTHER PURPOSES,
``ELECTRONIC PERMITTING MODERNIZATION ACT''; H.R. 5874, TO
AMEND THE UNITED STATES-MEXICO TRANSBOUNDARY AQUIFER ASSESSMENT
ACT TO REAUTHORIZE THE UNITED STATES-MEXICO TRANSBOUNDARY
AQUIFER ASSESSMENT PROGRAM, ``TRANSBOUNDARY AQUIFER ASSESSMENT
PROGRAM ACT'' OR ``TAAP ACT''; AND H.R. 6008, TO PROHIBIT THE
IMPLEMENTATION OF CERTAIN DOCUMENTS UNTIL THE ASSISTANT
ADMINISTRATOR FOR FISHERIES OF THE NATIONAL MARINE FISHERIES
SERVICE ISSUES DOCUMENTS RELATING TO THE RICE'S WHALE,
``REQUIRING INTEGRITY IN CONSERVATION EFFORTS ACT'' OR
``R.I.C.E.'S WHALE ACT''
----------
Wednesday, October 25, 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 3:05 p.m. in
Room 1334, Longworth House Office Building, Hon. Cliff Bentz
[Chairman of the Subcommittee] presiding.
Present: Representatives Bentz, McClintock, Graves,
LaMalfa, Duarte, Hageman; Huffman, Peltola, Hoyle, and Porter.
Also present: Representatives Ciscomani, Newhouse; and
Bonamici.
Mr. Bentz. The Subcommittee on Water, Wildlife and
Fisheries will come to order.
Good afternoon, everyone. I want to welcome Members,
witnesses, and our guests in the audience to today's hearing.
Without objection, the Chair is authorized to declare a
recess of the Subcommittee at any time.
Under Committee Rule 4(f), any oral opening statements are
limited to the Chairman and the Ranking Member. I ask unanimous
consent that all other Members' opening statements be made part
of the hearing record if they are submitted in accordance with
the Committee Rule 3(o).
Without objection, so ordered.
I also ask unanimous consent the gentleman from Washington,
Mr. Newhouse; the gentleman from Florida, Mr. Donalds; and the
gentleman from Arizona, Mr. Ciscomani be allowed to participate
in today's hearing.
Without objection, so ordered.
We are here today to consider 7 legislative bills: H.R.
520, to amend the Endangered Species Act of 1973 to provide
that artificially propagated animals shall be treated the same
under the Act as naturally propagated animals, sponsored by
Representative McClintock of California; H.R. 2990, the
National Oceanic and Atmospheric Administration Sexual
Harassment and Assault Prevention Improvements Act of 2023,
sponsored by Representative Bonamici of Oregon; H.R. 5103, the
FISHES Act, sponsored by Representative Donalds of Florida;
H.R. 5504, to require the director of the United States Fish
and Wildlife Service and Assistant Administrator for Fisheries
of the National Oceanic and Atmospheric Administration to
withdraw proposed rules relating to the Endangered Species Act
of 1973, and for other purposes, sponsored by Representative
Newhouse of Washington; H.R. 5509, the Electronic Permitting
Modernization Act, sponsored by Representative Porter of
California; H.R. 5874, the TAAP Act, sponsored by
Representative Ciscomani of Arizona; and H.R. 6008, the
Requiring Integrity in Conservation Efforts Act, sponsored by
Representative Graves of Louisiana, which was noticed as a
discussion draft.
I now recognize myself for a 5 minute opening statement.
STATEMENT OF THE HON. CLIFF BENTZ, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF OREGON
Mr. Bentz. Today, we are meeting to discuss seven bills
that address a variety of issues. Unsurprisingly, many of these
bills highlight growing concerns that the Endangered Species
Act, the ESA, will continue to be inflexible and unworkable.
For example, H.R. 5504, sponsored by Congressman Newhouse,
requires the withdrawal of the three proposed ESA rules
relating to interagency cooperation and critical habitat
designation, and the so-called blanket 4(d) rule issued by the
Biden administration that consolidates power in the hands of
the Administration and removes vital regulatory certainty for
stakeholders.
As we will hear from our witnesses today, these rules
increase conflict by continuing to focus on litigation-driven
decisions, rather than prioritizing work that focuses on the
recovery of a species. Instead, the Biden administration should
be working with Congress to modernize, streamline, and reform
the ESA.
H.R. 520, sponsored by Congressman McClintock, would amend
the ESA to require that artificially propagated species be
treated as equivalent to naturally propagated species.
H.R. 5874, sponsored by Congressman Ciscomani, reauthorizes
a program that provides state, Federal, and local officials
with information to address pressing water resource challenges
in the U.S.-Mexico border region.
H.R. 5103, sponsored by Congressman Donalds, addresses the
delays at the Office of Management and Budget when reviewing
and approving fishery disaster declarations.
Congressman Graves' legislation gives NOAA additional time
to conduct studies and develop the best available science on
Rice's whales, and to engage with the regulated community when
it updates the biological opinion for the Gulf of Mexico Oil
and Gas program.
I thank the Members for their work on these bills, and I
thank the witnesses for testifying today.
I now recognize Ranking Member Huffman for his opening
statement.
STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Huffman. Thank you, Mr. Chairman. Good afternoon, and
welcome to the witnesses who are with us.
Today's hearing covers seven bills, some of which are
bipartisan, sound policies. But in the interest of time, I will
focus on three of them that are not that.
I don't know about all of you, but I am experiencing some
deja vu in the Water, Wildlife and Fisheries Subcommittee today
as we consider the latest bills from Team Extreme's extinction
agenda, which we have been spending a lot of time on in this
Congress. The three ESA-related bills we will hear about today
pushed draconian, anti-science regulations that ignore climate
change, protect oil and gas interests, and drive species closer
to extinction. The common theme is that if the science isn't on
your side, just interfere with it or ignore it.
H.R. 520 directs the National Marine Fisheries Service and
the Fish and Wildlife Service to count artificially propagated
animals the same as naturally born animals under the ESA. This
would have dire consequences for endangered species recovery,
ranging from salmon to corals to many listed species in
between.
And some think that this bill might be a good idea to
expedite species delisting. But let's not forget that delisting
must consider the capacity of species to sustain themselves
across a substantial portion of their range. Unless you can get
salmon to build and operate their own hatcheries, that is just
not going to work.
This bill does nothing to recover species in the wild, such
as improving critical habitat. Instead, it makes it easier to
destroy essential habitat by skewing the analysis used in
biological opinions. Paradoxically, the bill could actually
increase ESA protections for artificially propagated animals in
some cases, leading to more permitting requirements and
paperwork for entities involved in conservation programs like
zoos and aquariums. This bill is sloppy, shortsighted,
unnecessary, and is not a serious public policy proposal.
Turning to H.R. 5504, we have yet another anti-science,
pro-extinction bill. Instead of focusing on the future needs of
wildlife, this legislates extinction, regressing ESA rules to
the low standards rolled out during the Trump administration.
This legislation blocks meaningful tribal consultation and
public input, protecting pro-oil and gas interests who want to
skirt environmental protection and keep us in the dark ages.
It is inappropriate for Congress to block any action on
proposed rules and interfere with the process of establishing a
yet-to-be-seen final rule. Let the agencies finish their work.
Finally, H.R. 6008 reads like a love letter to the oil and
gas industry. The main villain is the critically endangered
Rice's whale, a species with a population of about 50
individuals exclusively found in the Gulf of Mexico. If this
species goes extinct, the blame rests squarely on American
shoulders. Scientists are still actively studying Rice's
whales, but we know without a doubt that oil and gas activities
significantly impact them. It is estimated the Deepwater
Horizon disaster wiped out 22 percent of the population, and
ongoing and future oil and gas activities imminently threaten
this species. The bill blocks any precautionary measures for
oil and gas operations while the agencies conduct scientific
analyses to better protect the few remaining Rice's whales.
The hypocrisy in this bill is astounding. This morning
actually, we began marking up the BRIDGE Act, which exempts the
next 10 Gulf of Mexico oil and gas leases from NEPA entirely.
No basic levels of scrutiny, no public input for affected
communities, no input from wildlife agencies on the possible
impacts for marine life, nothing. But this bill today actively
gives oil and gas stakeholders a special seat at the table in
the rulemaking process for designating critical habitat and
revising biological opinions. The hypocritical messaging
couldn't be clearer.
When it comes to padding the pockets of oil and gas
industry, scientific experts and frontline communities are
silenced. But when it comes to the science and impact of an
endangered whale, the oil and gas industry is handed a
microphone, a megaphone. This bill is a slap in the face to
conservation science. The decisions we make must be based on
best available scientific and commercial data, not oil and gas
profits. And this bill clearly, in the name of modernizing the
ESA, would simply ignore science and let polluters write the
rules.
That said, before we get started I would like to ask
unanimous consent that Representative Suzanne Bonamici of
Oregon have permission to join us on the dais and participate
in the hearing to discuss H.R. 2990.
Mr. Bentz. Without objection.
Mr. Huffman. With that, I yield back.
Mr. Bentz. I will now introduce our first panel. As is
typical with legislative hearings, the bills' sponsors are
recognized for 5 minutes each to discuss their bills.
I now recognize Representative Bonamici for 5 minutes.
STATEMENT OF THE HON. SUZANNE BONAMICI, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Ms. Bonamici. Thank you very much, Chairman Bentz and
Ranking Member Huffman, for holding this legislative hearing
and for inviting me to speak in support of H.R. 2990, the
bipartisan NOAA Sexual Harassment and Assault Prevention
Improvements Act.
Everyone deserves a safe and welcoming workplace. Many
employees at the National Oceanic and Atmospheric
Administration, NOAA, work in remote locations and aboard
research and survey vessels, where they conduct cutting-edge
scientific research.
A few years ago, I met a fisheries biologist who is very
passionate about her work. She raised a serious issue. She and
some of her colleagues had experienced sexual harassment while
conducting research on a NOAA vessel ship and, after reporting
the harassment, had been effectively grounded. Her research was
derailed. She was told she could not be kept safe at sea. Her
colleagues and her harasser knew that she had reported her
experience, but at that time there seemed to be inadequate
investigation into her case and others. This was and is
unacceptable.
I contacted NOAA after hearing her story, and over the
years I have been encouraged by changes in NOAA's policies and
procedures. NOAA made it easier to report sexual harassment,
required new training, and changed their investigation
protocol.
In the years after NOAA completed the investigation into
this biologist's case and she was able to return to sea and
resume her research, I have spoken about this issue, Mr.
Chairman and Mr. Ranking Member, with every NOAA administrator
and acting administrator since Dr. Kathryn Sullivan.
And I do want to thank current NOAA Administrator Dr. Rick
Spinrad, who happens to be an Oregonian, for his commitment to
continue this work to keep every NOAA employee safe.
Although NOAA has taken steps to update their policies, we
must do more to prevent harassment, help survivors seek
justice, and hold harassers accountable for their action. My
bipartisan bill would build on NOAA's progress by expanding
coverage of NOAA's Sexual Harassment Prevention and Response
Policy to include individuals who are employees of contractors
who would not otherwise be covered. This change will close an
important gap in protection.
My bill would also direct NOAA to provide a clear and
secure structure for anonymous reports of sexual harassment.
This would make it easier for survivors to identify safe
reporting services without triggering an investigative process,
unless the survivor requests it. Current law requires an
investigation for all submitted reports of harassment.
This bill would also expand the information required in
reports to Congress on sexual harassment and assault to include
new covered employees and change of station or work location
requests.
Importantly, this bill would empower NOAA's Office of Law
Enforcement to enforce a prohibition on assault, intimidation,
and interference with fisheries observers by removing
restrictive stipulations that these acts need to be forcible in
nature and occur on a vessel for NOAA to be able to
investigate.
Mr. Chairman, NOAA has taken meaningful steps to protect
its researchers and contractors. This bill will strengthen
those efforts and make needed improvements to prevent
harassment, modernize reporting, and hold harassers accountable
to bring justice for survivors. Scientists and researchers need
to be able to achieve the next generation of scientific
advancements and discoveries without the fear of sexual
harassment, sexual assault, or retaliation in the workplace.
I want to thank my co-leads on this legislation,
Representatives Gonzalez-Colon and Salazar.
Ranking Member Huffman, Chairman Bentz, and the Committee,
thank you again for considering this important legislation. I
yield back the balance of my time.
Mr. Bentz. Thank you.
I now recognize Representative McClintock for 5 minutes.
STATEMENT OF THE HON. TOM McCLINTOCK, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. McClintock. Thank you, Mr. Chairman, thank you for
holding a hearing today on H.R. 520.
Many years ago, when I was first elected to a district that
included part of the Klamath Valley, I was introduced to the
controversy involving the Klamath dams. The environmental left
was attempting to tear down those dams, and it is finally
succeeding. When I asked why, I was told of a catastrophic
decline in the salmon population on the Klamath. I asked, well,
how many are left? They said just a few hundred are left in the
entire river. I said, well, that is terrible. Why doesn't
somebody build a fish hatchery? Well, I soon learned that
somebody did build a fish hatchery many years before.
The Iron Gate Fish Hatchery produces 5 million salmon
smolts every year, with about 17,000 of them returning as fully
grown adults to spawn in the Klamath. The problem is those
adults aren't included in the population count. And to add
insult to insanity, when they tear down the Iron Gate Dam, the
Iron Gate Fish Hatchery goes with it, and then we will have a
catastrophic decline in the salmon population.
And I then learned that, in most cases, the product of
captive breeding programs are not allowed to be counted for
purposes of the Endangered Species Act. The captive breeding
operations such as fish hatcheries are often far cheaper and
far more successful in propagating species than declaring vast
swaths of land off limits for human activity. Indeed, captive
breeding programs have been highly successful in bringing back
species on the very brink of extinction, such as the California
condor.
The simple reality is that the difference between a fish
born in a hatchery and a fish born in the wild is the same
difference as a baby born at a hospital or a baby born at home.
Indeed, captive breeding programs can increase the genetic
diversities of species that is at the very heart of the natural
selection process that assures that a population is resilient
under the changing conditions of nature.
So, this bill very simply says that captive breeding
programs need to be recognized by the Endangered Species Act as
legitimate contributors to efforts to preserve the biodiversity
and population of a species. Indeed, by recognizing this
reality and by encouraging the use of captive breeding
programs, I think we are better meeting the goals of the
Endangered Species Act to assure that species in danger of
extinction can be quickly and efficiently restored, and that
the absurd distinctions that are about to decimate the salmon
population on the Klamath that can be eliminated.
I yield back.
Mr. Bentz. Thank you.
I now recognize Representative Newhouse for 5 minutes.
STATEMENT OF THE HON. DAN NEWHOUSE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
Mr. Newhouse. Thank you, Chairman Bentz and Ranking Member
Huffman, for the opportunity to testify in support of my bill,
H.R. 5504, which would repeal three Biden administration
regulations from the Fish and Wildlife Service and NOAA.
First, I would like to enter into the record a letter of
support for my bill from the National Association of
Homebuilders, and also thank them for their efforts on ESA
reform.
In 2019, key changes to the Endangered Species Act were
finalized by the previous administration that added more
flexibility for affected stakeholders while also ensuring
species recovery plans have a tailored and targeted approach.
We have all known for a long time that the ESA is indeed in
need of reform, and these changes were celebrated as they
clarified and simplified how the ESA worked.
The first regulation that was changed was the elimination
of the blanket rule under section 4(d) that automatically
provided endangered-level protections to species that are only
listed as threatened.
The second 2019 revision was in relation to critical
habitat, and allowed the Fish and Wildlife Service and NOAA to
research and share the economic impacts of a listing
determination under the ESA, while providing flexibility in
defining critical habitat, allowing the agencies leeway to only
designate unoccupied areas as critical habitat if necessary.
The final change provided a more realistic and flexible
approach by simplifying the interagency consultation process.
They improved section 7 consultation established standards to
ensure effect analysis of the proposed actions were only
limited to activities that are reasonably certain to occur,
taking away the leeway for agencies to assume the worst case
scenarios for a species without clear and substantial
information.
But this past June, the Biden administration proposed three
rules to reverse all that I just described. My bill before us
today would prevent the Administration from finalizing these
proposals, and retain the previous administration's changes.
I have said it many times, but for far too long radical
environmental activists have weaponized the ESA against
farmers, ranchers, landowners, and rural communities while
recovering less than 3 percent of species listed over the last
50 years. The proposed rule from Biden's Fish and Wildlife
Service will encourage further disruptions by activists, and
make it even more difficult for true conservationists to assist
with species recovery.
I believe we all have the same goal: to recover endangered
species. We should not allow for this Administration or any
administration or the agencies to continue to make it
impossible to recover species and remove them from the list,
especially at the detriment of those farmers, ranchers, and
landowners.
As the Chairman of the Western Caucus, I am proud of this
legislation, and I am happy to introduce it alongside the Chair
of the Senate Western Caucus, Senator Lummis of Wyoming, to
prevent these egregious rules from taking effect and to steer
the ESA back to its intended purpose of helping species recover
without being a barrier to prosperity for our rural
communities.
Once again, thank you, Chairman Bentz, Ranking Member
Huffman, for the opportunity to speak in support of my bill,
and I yield back.
Mr. Bentz. Thank you. I thank the Members for their
testimony.
I will now introduce our panel: Mr. Gary Frazer, Assistant
Director for Ecological Services with the U.S. Fish and
Wildlife Service in Washington, DC; Mr. Tom Birmingham, Water
Policy Expert in Sacramento, California; Dr. Sharon Megdal,
Director of the Water Resources Research Center at University
of Arizona in Tucson, Arizona; Dr. Barbara Taylor, the Red List
Coordinator for the Cetacean Specialist Group with the
International Union for Conservation of Nature in San Diego,
California; Mr. Stephen Roady, Senior Lecturing Fellow and
Professor of the Practice at Duke University in Washington, DC;
Mr. Robert Beal, Executive Director of the Atlantic States
Marine Fisheries Commission in Arlington, Virginia; Mr.
Jonathan Wood, Vice President of Law and Policy at the Property
and Environment Research Center in Bozeman, Montana; and Dr.
Alex Loureiro, Scientific Director at EnerGeo Alliance in
Houston, Texas.
I think we have just been joined by two Representatives.
Representative Porter, are you ready to go?
Ms. Porter. I am ready. Let me just move over to where
there is a microphone so that you can hear me. I am ready to
go, sir, and I really appreciate it.
Mr. Bentz. I now recognize Representative Porter for 5
minutes.
STATEMENT OF THE HON. KATIE PORTER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Ms. Porter. Thank you very much, Chairman Bentz and Ranking
Member Huffman, for selecting my bill to be part of this
Subcommittee hearing.
I also want to thank Chairman Westerman and Ranking Member
Grijalva, and both of their staffs for collaboration on this
bipartisan bill.
Many of you may know that when one of my bills is in a
legislative hearing in this Committee I like to print it on a
poster board so that everybody can read it. And sadly, I wasn't
able to trim this bill to one page. I got close, two pages, but
I didn't dare try to hold up two poster boards at the same
time, so no posters.
But I still think this bill is easy enough to grasp. After
all, its topic, permitting reform, has been on our minds all
year. Let's be real. In this Committee, the permitting reform
debate can get incredibly partisan and very heated. Republicans
say they want it one way, Democrats say they want it the other
way. But if we want to get anything done, we have to cut
through that noise. We know that we can make our permitting
reform process more efficient, and we can make progress if we
can find just one area where everyone agrees.
Look no further than the bill that I wrote with my
colleague from California, Congressman LaMalfa, the Electronic
Permitting Modernization Act. This bill would task the
Department of the Interior to offer an online option for as
many of its permits as possible. Then it would require the
Department to report back to us, to Congress, periodically on
its progress toward electronic permitting.
Why does this matter? Because an online option for permits
will reduce the amount of paperwork that gets mailed to our
agencies and speed up processing times. We can improve
permitting efficiency, which is what we all want without
getting partisan.
At the same time, this bill will help Congress hold the
Department of the Interior accountable for its work. We can
applaud it when it is making progress, and we can hold it to
account when it is coming up short. When the Department puts
all of its permits in one place, we can more easily see which
bureaus are getting things done here, with us, in the 21st
century and which bureaus are still having workers sitting in
windowless rooms, opening envelopes with paper checks and forms
in triplicate.
But what matters most about this bill is that it improves
the daily lives of the people we serve. Imagine you need a
permit to reserve Federal land for an event. Would you want to
dig through the websites of each of the bureaus of the
Department of the Interior to try to find the right form, try
to print it out, mail it in, and then hope that someday you
hear back, or would you want to consult one single Department
of the Interior webpage that links to all of the permitting
platforms so that you can quickly find the right application
and submit it online?
I will take the easy and efficient online way, please. And
who wouldn't? Twenty-first century citizens deserve a 21st
century Department of the Interior.
Now here is the big question: Is it possible for the
Department of the Interior to build an efficient system like
this? It is. And look no further for an example than an agency
within the Department of the Interior itself, the U.S. Fish and
Wildlife Service. This bureau has already brought over 80
different types of permits online. That is a government success
story that we ought to be building upon. The Department of the
Interior already has an exemplary bureau to use as a model. Now
it needs to get things moving at its other bureaus. This bill
pushes that process along, requiring the Department to create
one webpage, and on that page link to the online permitting
platforms and tell people how they can contact the appropriate
bureau if they need help.
Look, I am a single mom with three kids. When your life is
anything like mine, you just want things that you expect to be
easy to actually be easy. Let's simplify people's lives just a
little. Let's show them that this part of their government,
using their public lands, works efficiently.
I want to thank my colleague, Congressman LaMalfa, for his
partnership on this bill to do just that. Let's continue in a
bipartisan spirit. I urge all my colleagues to support the
Electronic Permitting Modernization Act, and I look forward to
this hearing and to eventually marking up this bill.
I yield back.
Mr. Bentz. Thank you.
The Chair now recognizes Representative Ciscomani for 5
minutes.
STATEMENT OF THE HON. JUAN CISCOMANI, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Ciscomani. Thank you, Chairman Bentz and Subcommittee
members for allowing me to testify in support of my bill, H.R.
5874, the TAAP Act.
This bipartisan bill would authorize the incredibly
important TAAP program for 10 additional years.
Originally authorized by the late Congressman Jim Kolbe, a
good friend, a mentor of mine, and someone that held my seat
here, the seat that I am in now, for 22 years earlier, from the
late 1980s, 1990s, and even into the 2000s, Congressman Kolbe
continues to be a standard of character for our community and
also former Senator Jon Kyl, another good friend of mine, the
TAAP Act facilitates groundwater studies between the U.S.
Geological Service, University of Arizona, the University of
New Mexico, Texas A&M, and several agencies in Mexico.
For Arizonans, water security is always top of mind. I
always say that we made the 5th largest city in the desert, in
the middle of the desert, and while we have made enormous
strides in conserving our water resources, more work must be
done to secure Arizona's water future.
I represent the 6th District of Arizona, which contains a
significant part of the southern region of the state, including
several border communities. Many of my constituents that I
represent rely on pumped groundwater from transboundary
aquifers for their drinking water, farming, and other everyday
needs. Water managers in southwestern communities are faced
with several unique challenges, one being the invisible nature
of groundwater. Groundwater quality and quantity is much more
difficult to measure than river water, as it is often far below
the surface, making it hard to keep track of.
One of the top challenges in the Southwest is, several
priority aquifers are shared with our neighboring state of
Mexico, which creates even further complications. Mexico and
the United States have different ways of managing our natural
resources, and it can be difficult to come up with solutions
that work for both communities, for both countries.
In order to make wise decisions, these folks need to know
how much water is being depleted and recharged in the aquifers.
That is why more research is needed to support these often
rural and underserved communities. The more information they
have regarding their water supply, the better they will be to
serve the water needs of their communities.
Since its conception, the TAAP program has made tremendous
strides in expanding our understanding of our water resources
and, consequently, has improved our water diplomacy efforts
with Mexico. The participating researchers of the TAAP program
have more important research in their works, which I look
forward to hearing about today from our witnesses.
Dr. Megdal, thanks for the work being done through this
program. The water users, managers, and policymakers alike can
rest assured that they have accurate and detailed information
about key transboundary aquifers in the Southwest.
As Arizonans, we know that water is our lifeline. This bill
is critical in ensuring we have clean and abundant water for
years to come.
Thank you again, Subcommittee members, for hearing my
testimony today, and I look forward to seeing H.R. 5874 pass
the full House Natural Resources Committee in a swift,
bipartisan fashion.
Thank you, and I yield back.
Mr. Bentz. Thank you, and I thank the Members for their
testimony, and I thank the witnesses for their patience.
We will begin with Mr. Gary Frazer, Assistant Director for
Ecological Services, the U.S. Fish and Wildlife Service in
Washington, DC.
You are recognized, sir, for 5 minutes.
STATEMENT OF GARY FRAZER, ASSISTANT DIRECTOR FOR ECOLOGICAL
SERVICES, U.S. FISH & WILDLIFE SERVICE, DEPARTMENT OF THE
INTERIOR, WASHINGTON, DC
Mr. Frazer. Good afternoon, Chairman Bentz, Ranking Member
Huffman, and members of the Subcommittee. Thank you for the
opportunity to testify on bills related to the Endangered
Species Act and electronic permitting systems.
The ESA is a cornerstone of the Service's conservation
mission, and our implementation of the law centers around
applying the best available science and adhering to our
thorough rulemaking process. To effectively carry out our
responsibilities under the ESA, we must have science-based,
clear, and up-to-date implementing regulations.
To balance resource use and protection, the Service also
issues a variety of permits under the laws we administer, and
seeks to ensure that these permit forms and processes are
easily accessible and navigable for the public we serve.
H.R. 520 would require that the Secretary not distinguish
between naturally and artificially propagated animals in making
any determinations under the ESA, as well as require the
authorization of artificial propagation of animals for
mitigation required under the ESA.
The intent of the ESA is to recover wild populations of
species in their natural habitat whenever possible. Controlled
propagation has long been an important recovery tool, but is
not necessary or appropriate for every species, must be
carefully managed to support the conservation of wild
populations, and is not a substitute for addressing threats to
the species.
Recovery is not simply a matter of numbers of individuals.
Rather, recovery involves restoring healthy, secure, and self-
sustaining populations of species in the wild. The Service
already has the authority under the ESA to use controlled
propagation as a recovery tool. We have an existing policy that
addresses its role in the conservation and recovery of listed
species, and we have used it in many circumstances when it is
appropriate to do so.
However, the Service is concerned that H.R. 520 would have
negative repercussions for species recovery. The bill would
require the Secretary to treat wild and artificially propagated
animals as equivalent for ESA determinations and mitigation,
even when doing so may not be appropriate for the conservation
of the species. The Service is also concerned that the bill
would violate the United States implementation of CITES. For
these reasons the Service opposes H.R. 520.
H.R. 5504 would require the withdrawal of proposed rules
revising ESA implementing regulations for listing species and
designating critical habitat, for carrying out interagency
section 7 consultations, and for determining what protections
apply to threatened species.
Mr. Bentz. Excuse me, Mr. Frazer, if I can interrupt, if
you could get closer to your mic, the mics in this room are
notoriously bad. So, you are going to have to pretend you are
with the Rolling Stones and you are singing to us.
[Laughter.]
Mr. Frazer. Thank you, Mr. Chairman. I apologize.
H.R. 5504 would also prohibit the Service and National
Marine Fisheries Service from finalizing, implementing, or
enforcing these proposed rules. These proposed rules would
provide important protections for species, strengthen and
clarify consultation and listing processes, reaffirm the key
role that science plays in decisions that guide the protection
and recovery of endangered and threatened species, and align
with the purposes of the ESA.
The Service opposes H.R. 5504. The ESA assigns to the
Secretary the responsibility to develop implementing
regulations. The Services are doing so following the best
available science and the processes prescribed by the ESA in
the Administrative Procedure Act, including public review and
comment.
The Department supports H.R. 5509, which would direct the
Secretary of the Interior to design and deliver electronic
systems for permits, forms, and other required paperwork.
In Fiscal Year 2020, the Service began creating an
electronic system called ePermits. Currently, ePermits has over
50,000 user accounts for over 80 different permit applications.
At full capacity, the ePermits will provide an efficient,
modern, and secure system that improves the permitting process
for the public we serve.
H.R. 5509 would encourage further modernization while
providing the flexibility necessary for the Service to work
with different regulatory, statutory, and treaty requirements.
It also allows the Department to evaluate best practices for
protecting data, including those from tribes or businesses.
I appreciate the opportunity to testify before the
Subcommittee today, and I would be pleased to answer any
questions you may have.
[The prepared statement of Mr. Frazer follows:]
Prepared Statement of Gary Frazer, Assistant Director for Ecological
Services, U.S. Fish and Wildlife Service, Department of the Interior
on H.R. 520, H.R. 5504, and H.R. 5509
Introduction
Good morning, Chairman Bentz, Ranking Member Huffman, and Members
of the Subcommittee. I am Gary Frazer, Assistant Director for
Ecological Services for the U.S. Fish and Wildlife Service (Service)
within the Department of the Interior (Department). I appreciate the
opportunity to testify before you today on two bills related to the
Endangered Species Act (ESA) and one bill related to modernization of
permitting systems within the Department.
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.
Implementation of the ESA is a cornerstone of the Service's
responsibilities in stewarding plants, fish, and wildlife. Through this
law, Congress set a public policy to address the loss of biodiversity
and prevent species extinctions. The ESA, which turns 50 this year,
plays a pivotal role in protecting threatened and endangered species
and their habitat, and in implementing wildlife conservation treaties
including the Convention on International Trade in Endangered Species
of Wild Fauna and Flora (CITES). Through CITES, 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,
wildlife, and plants facing extinction. A key component of the ESA is
the protection and restoration of global biodiversity, which requires
healthy wildlife and plant populations, living in the wild, that retain
genetic diversity for long-term sustainability.
Central elements of the Service's implementation of the ESA, are
(1) a reliance on, and prioritization of, the best available science;
and (2) a careful adherence to our thorough rulemaking process. The
Service, and other agencies responsible for carrying out the ESA, must
have science-based, clear, and up-to-date implementing regulations.
Day-to-day work related to interagency cooperation under Section 7 of
the ESA, classification of species and designation of critical habitat
under Section 4, and protection of threatened species under Section
4(d), are all underpinned and guided by our implementing regulations.
Alongside the conservation of threatened and endangered species in
the U.S., the Service also works globally with partners to protect,
restore and conserve all wildlife populations and their habitats in the
face of increasing environmental challenges and human demand through
development, outdoor recreation, and trade. To balance resource use and
protection, the Service issues a multitude of wide-ranging permits
under the laws we implement. Permits issued by the Service help
facilitate important activities such as scientific research and the
import of hunting trophies under CITES, and rehabilitation, education,
and depredation under the Migratory Bird Treaty Act. Ensuring that
these permits are easily accessible and navigable is essential for the
Service's responsibility to the American people and to ensure compliant
conservation actions are taken in a timely manner.
The Service appreciates the Subcommittee's interest in the ESA and
electronic permitting. We offer the following comments on the three
bills under consideration today and look forward to discussing our
views with the Subcommittee.
H.R. 520, To amend the Endangered Species Act of 1973 to provide that
artificially propagated animals shall be treated the same under
that Act as naturally propagated animals, and for other
purposes
H.R. 520 would amend Section 4 of the ESA to require that the
Secretary of the Interior or the Secretary of Commerce (as appropriate)
not distinguish between naturally and artificially propagated animals
in making any determinations under the ESA. This would include
determinations of threatened or endangered species status, as well as
an array of other actions such as critical habitat designations or
recovery plans. The bill would also amend Section 14 of the ESA to
require the Secretaries to authorize the use of artificial propagation
of animals for any mitigation required under the ESA regarding that
species. The bill would make the amendments applicable to all
endangered or threatened species listed before, on, or after the date
of enactment of the legislation.
The Service opposes H.R. 520 and outlines several concerns with
this legislation below.
The intent of the ESA is to recover wild populations of species in
their natural habitat whenever possible. In well-managed circumstances,
controlled propagation can support the recovery of some listed species
and can be used to reverse declines and return listed species to
suitable habitat in the wild. For example, genetically managed
conservation breeding programs can be used for reintroductions of
species into the wild (e.g., Species Survival Plan programs). However,
controlled propagation is not necessary or appropriate for every
species, must be carefully managed to support the conservation of wild
populations, and is not a substitute for addressing the primary threats
to the species. A species listing is based on primary threats described
in a listing rule. Species recovery is not simply a matter of numbers
of individuals, rather recovery is dependent upon fully addressing the
threats for the long term, so that species are restored to ecological
health.
Section 10(j) of the ESA allows the Service to establish
experimental populations as a recovery tool and in July 2023, the
Service revised these regulations to provide more flexibility to
establish experimental populations outside of a species' historical
range when important to address threats like climate change. The
regulations outline requirements and considerations for establishing
these populations using the best available science and could allow
using species that were propagated in a genetically managed breeding
program. In addition, the Service and the National Marine Fisheries
Service (NMFS; collectively the Services) have an existing policy that
addresses the role of controlled propagation in the conservation and
recovery of species listed as endangered or threatened under the ESA
(65 FR 56916). Including plant species, over 700 of the approximately
1,690 domestic species currently listed under the ESA have some kind of
controlled propagation program. Given that the Service currently has
the flexibility to use controlled propagation as a tool to aid in
species recovery, H.R. 520 would not provide any additional benefit to
species protected under the ESA but could have negative repercussions
for species recovery.
H.R. 520 does not include definitions for several important terms
and lacks clarifying language for implementation of the legislation.
There are no definitions for the terms ``animal'' or ``artificially
propagated,'' so there is no distinction between breeding in captivity
for conservation purposes and other forms of artificial or controlled
propagation. Without a definition or clarifying language, there is no
requirement that the breeding be for conservation and reintroduction or
ensuring healthy and sustainable species genetics, which are important
factors to ensuring benefits to wild populations. There is also no
delineation of qualified entities to conduct the artificial
propagation, or discussion of qualifications or licensing of the
individuals conducting such work or maintaining such facilities, which
risks improper breeding of species. Further, as written, this bill
would allow animals cultivated in commercial breeding operations for
commercial sale, including human consumption, to qualify as
artificially propagated animals and be treated the same as naturally
propagated animals. Commercially raised animals often are not
behaviorally suitable for release into the wild, and often differ
substantially from their wild counterparts due to selective pressures
from humans and the captive environment. As such, artificially
propagated animals should not be treated the same as naturally
propagated animals in every circumstance under the ESA, as would be
required under H.R. 520.
Additionally, H.R. 520 would violate the United States'
implementation of CITES, which includes different requirements for
captive-bred or artificially propagated versus wild specimens, as there
is no clear distinction in the legislation that the requirements would
apply only with regard to requirements for ESA-listed species and not
affect the separate international requirements for CITES-listed
species.
H.R. 520 could lead to impacts on the long-term health of wild and
captive-bred animals. A lack of sound and appropriate management of
controlled propagation of listed species presents many genetic and
ecological risks and may be counter to recovery efforts. In most
captive breeding programs, not all individual animals are suitable for
release or breeding. Captive-bred animals can also become behaviorally
adapted to captivity, and maladapted for survival and reproduction in
the wild. In addition, wild animals and plants are often more resilient
to climatic changes, such as drought, as compared to propagated animals
and plants, and are better able to adapt to climate change, helping to
preserve biodiversity long into the future. Genetic diversity and the
potential for genetic bottlenecks is also a concern if controlled
propagation is not conducted according to sound genetic management
plans. The Services' controlled propagation policy addresses sound
management of controlled propagation when it is recommended for
recovery of listed species.
H.R. 520 may prevent the Service from implementing and applying its
controlled propagation policy and use of best available science to
ensure controlled propagation of listed species is soundly managed and
consistent with the recovery and conservation needs of listed species.
While Section 1 of this legislation only directly amends Section 4
of the ESA, it would pertain to determinations in all sections of the
ESA including Section 7 consultations and ESA permitting decisions. For
example, the Services currently consider propagated animals in Section
7 consultations and, consistent with the ESA, the Services'
consideration takes into account factors such as genetic diversity and
suitability for release, as informed by the best scientific and
commercial data available. As written, it appears H.R. 520 would
preclude the Services from basing determinations on the best scientific
and commercial data available.
Finally, the Service also has concerns regarding the requirement
that the Secretary shall authorize the use of artificial propagation of
animals of a species for purposes of any mitigation required under the
ESA related to that species. The Service already has the authority to
utilize artificially propagated animals for mitigation in circumstances
where it is appropriate, and we do so when that is in the best interest
of conservation of the species. That said, for most species, artificial
or controlled propagation is not appropriate as mitigation as it does
not directly address the species' conservation needs. For the vast
majority of species, traditional mitigation approaches, such as habitat
restoration and protection, are more effective and scientifically
appropriate. Whether or not wild or artificially propagated animals are
utilized should be based solely on the best available science.
While the Service opposes H.R. 520, we would welcome the
opportunity to discuss the intent of the legislation and the Service's
current use of controlled propagation to support species recovery in
the wild with the sponsor and the Subcommittee.
H.R. 5504, To require the Director of the United States Fish and
Wildlife Service and the Assistant Administrator for Fisheries
of the National Oceanic and Atmospheric Administration to
withdraw proposed rules relating to the Endangered Species Act
of 1973
H.R. 5504 would require the Services to withdraw proposed rules
revising regulations under Section 7 of the ESA on Interagency
Cooperation (88 Fed. Reg. 40753) and Section 4 of the ESA on Listing
Endangered and Threatened Species and Designating Critical Habitat (88
Fed. Reg. 40764). The legislation would also require the Service to
withdraw the proposed rule revising regulations under Section 4(d) of
the ESA Pertaining to Endangered and Threatened Wildlife and Plants (88
Fed. Reg. 40742). H.R. 5504 would prohibit the Services from taking any
action to finalize, implement, or enforce these proposed rules.
The Service opposes H.R. 5504. The ESA assigns the Secretary the
responsibility to develop regulations to implement this statute. The
Services are doing so in this rulemaking process following the best
available science, and the administrative processes prescribed by the
ESA and the Administrative Procedure Act (APA), including public review
and comment. The Service believes that this is the proper path for
carrying out our statutory responsibility for implementing the ESA.
In January 2021, the President issued Executive Order 13990, which,
in Section 2, required all executive departments and agencies to review
Federal regulations and actions taken between January 20, 2017, and
January 20, 2021. Subsequently, in June 2021, the Services announced a
plan to improve and strengthen implementation of the ESA. This plan
included tailored revisions to the regulations for listing species and
designating critical habitat, and for interagency cooperation. It also
included reinstating the option of applying the protections afforded to
endangered species to species listed as threatened under the ESA
(``blanket'' 4(d) rule). In response to this Executive Order and in
accordance with commitments made in response to litigation and a court-
ordered remand, the Services have proposed revisions to the 2019
regulations.
On June 22, 2023, the Services proposed to revise two final rules
that had been jointly issued in 2019 under Sections 7 and 4 of the ESA,
and the Service proposed to reinstate the option to apply the
protections afforded to endangered species to threatened species (also
known as the ``blanket 4(d) rule'') under Section 4(d) of the ESA,
which had been removed in 2019. In conducting our review and putting
forward our proposed rules, the Services followed the core principles
of science-based evaluation and public participation and comment as
part of our rulemaking procedures.
The Services' proposed rule regarding Section 7 of the ESA would
amend portions of the regulations under the 2019 final rule that govern
interagency cooperation. Our review of the 2019 rule indicated that,
while most of the changes finalized in that rule met the intent of
clarifying and improving the consultation process, certain revisions
would be beneficial to further improve and clarify interagency
consultation, while continuing to provide for the conservation of
listed species.
The proposed Section 7 revisions to the 2019 final rule include
clarifying the Service's responsibilities regarding reinitiation of
consultation, clarifying the definitions ``effects of the action'' and
``environmental baseline,'' and removal of Section 402.17 ``Other
Provisions'' that was added in the 2019 final rule. These proposed
revisions simplify the regulations and eliminate the need for any
reader to consult multiple sections of the regulations to discern what
is considered an ``effect of the action.'' In addition, the proposed
rule includes amendments to the regulatory provisions relating to the
scope of reasonable and prudent measures in an incidental take
statement to better reflect congressional intent and serve the
conservation goals of the ESA. Minimizing impacts of incidental take on
the species through the use of offsetting measures can result in
improved conservation outcomes for species and may reduce the
accumulation of adverse impacts, sometimes referred to as ``death by a
thousand cuts.''
Ensuring Section 7 consultation regulations are clear and up to
date is critical. 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 a listed species or critical
habitat. 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 or threatened species or destroy
or adversely modify their designated critical habitat. Since November
1, 2022, the Service has logged more than 87,000 requests for project
reviews. Many of these requests were for Section 7 consultations for
energy, infrastructure, and construction projects. The Service
anticipates this workload will continue to rise with implementation of
the Bipartisan Infrastructure Law and Inflation Reduction Act, and as
our Nation's population, economy, and infrastructure needs continue to
grow. The proposed rule will help ensure that Federal agency partners
have greater clarity in their role in implementing the ESA through
Section 7.
The Services' proposed rule regarding regulations under Section 4
would revise the 2019 final rule on listing species and designation of
critical habitat. The proposed rule, published on June 22, 2023, would
reinstate prior language affirming explicit Congressional direction
that listing determinations are to be made ``without reference to
possible economic or other impacts of such determination''. Decisions
regarding classification determinations should be based solely on the
best scientific and commercial data available as reflected in the
language of the ESA, not possible economic or other impacts of listing,
reclassifying, or delisting a species. The proposed rule would also
revise the reasons for delisting by reinserting the word ``recovered''
to explicitly acknowledge that one of the fundamental goals of the ESA
is to recover listed species. It would also revise the foreseeable
future framework, revise the circumstances for when critical habitat
designation may be not prudent, and revise the criteria for designation
of unoccupied critical habitat. Revision of the critical habitat
regulations will better prepare the Service and our partners to
continue conserving species and their ecosystems as climatic conditions
change.
The Service's proposed rule regarding regulations under Section
4(d) would reinstate the blanket 4(d) rules, which were withdrawn in
2019. The blanket 4(d) rules provide an option to extend most
protections provided to endangered species to species listed as
threatened, unless the agency adopts a species-specific 4(d) rule.
Reinstating the blanket 4(d) rule option, which was in place for
more than 40 years prior to the 2019 withdrawal, will allow for a more
efficient, straightforward, and transparent method to protect
threatened species for which the Service finds the blanket rule
protections are appropriate. It would also ensure there is never a
lapse in threatened species protections. In situations where it is
determined that the standard suite of Section 9 prohibitions, as well
as several exceptions to those prohibitions, are appropriate for a
threatened species, we would not need to develop any additional
regulatory text to codify a species-specific 4(d) rule. If the proposed
rule is finalized, the Service would still maintain the ability to
issue species-specific 4(d) rules.
As a whole, these proposed rules provide important protections for
species, strengthen consultation and listing processes, reaffirm the
central role science plays in decisions that guide the protection and
recovery of endangered and threatened species, and align with the
conservation purposes and the statutory language of the ESA. In
addition, the Services are carefully following the best available
science, the rulemaking process outlined in the ESA, and the APA in
promulgating these proposed rules.
H.R. 5509, Electronic Permitting Modernization Act
H.R. 5509, the Electronic Permitting Modernization Act, would
direct the Secretary of the Interior to design and deliver electronic
permitting systems for permits, forms, and other required paperwork, to
the extent practicable. The Secretary would also be required to create
a centralized repository with hyperlinks to all electronic permitting
systems across the bureaus of the Department, and points of contact for
customer service or technical assistance inquiries. Finally, H.R. 5509
would also require the Secretary to provide Congress with periodic
updates on implementation. The Department supports H.R. 5509, which
aligns with modernization efforts already underway across the
Department.
As a federal agency, the Service is committed to continually
improving our delivery of and access to services for the public. In
Fiscal Year (FY) 2020, the Service began creating a centralized,
electronic system for permits called ePermits. Since then, we have been
incrementally improving the system and increasing its capacity.
Currently, ePermits has over 50,000 user accounts for over 80 different
permit application forms and feedback has been increasingly positive.
Examples of permits currently available on ePermits include CITES
permits, ESA incidental take permits, and Migratory Bird Treaty Act
depredation permits. At full capacity, ePermits will provide an
efficient, modern, and secure system that improves the permitting
process for Service stakeholders. In addition, other bureaus within the
Department also maintain electronic permitting systems. For example,
the Bureau of Safety and Environmental Enforcement maintains two
electronic systems for well permitting: eWell and Technical Information
Management System (TIMS Web).
H.R. 5509 would encourage further progress on modernizing permits,
while providing the flexibility necessary for the Service to work with
different regulatory, statutory, and treaty requirements of permits.
This flexibility is also important across the Department as these
systems require specialized structures to transfer, store, and process
large amounts of data. Importantly, by allowing the Secretary to
operate these systems ``to the extent practicable'', H.R. 5509 allows
the Department to evaluate best practices for protecting data,
including data from Tribes and confidential business information that
often have unique privacy protections and may need to be precluded from
a centralized database or public release. Developing and maintaining
these modern dynamic public-facing systems will require additional
resources to increase agencies' capacities, especially as permit
requirements are added or updated and as more users apply online. The
Service is requesting $13.5 million in FY 2024 for ePermits to add new
permits for the National Wildlife Refuge System and our Migratory Birds
program, while improving the functionality of the system. We appreciate
the sponsor's and the Subcommittee's efforts to work with the Service
in ensuring that the modernization of electronic permitting systems is
implementable and beneficial to the public.
Conclusion
The Service appreciates the Subcommittee's interest in the ESA and
electronic permitting. With the flexibility provided by the ESA, the
Service is using controlled propagation as a tool to aid in species
recovery. We have also issued proposed rules to provide science-based,
clear, and up-to-date implementing regulations for the ESA.
Additionally, the Service is striving to make permitting easier and
more accessible through electronic systems that will improve service
delivery to the public. We would welcome the opportunity to discuss
these efforts further with the Subcommittee.
______
Questions Submitted for the Record to Mr. Gary Frazer, Assistant
Director for Ecological Services, U.S. Fish and Wildlife Service
Mr. Frazer did not submit responses to the Committee by the appropriate
deadline for inclusion in the printed record.
Questions Submitted by Representative Bentz
Question 1. What percentage of species listed under the ESA are
improving?
Question 2. The Service has indicated plans to restore the
``blanket 4(d) rule,'' that automatically regulates endangered species
as if they were threatened. During this administration, the Service has
so far listed 11 animal species as threatened. It could have extended
endangered-level regulations to any of them. Instead, in every case, it
has rejected that approach because a tailored rule would be better for
species conservation. Given this administration's consistent rejection
of the blanket rule's approach, why is it moving forward with plans to
restore the blanket rule?
Question 3. In the 2019 final rule to revise the regulations for
Section 4 of the Endangered Species Act relating to listing of
endangered and threatened species and designating critical habitat, the
Fish and Wildlife Service and the National Marine Fisheries Service
added more robust and detailed procedures for the designation of
unoccupied areas as critical habitat. The 2023 proposed rule would
largely remove those regulatory provisions. Along with the 2022
rescission of the definition of ``habitat'' that was finalized in 2020,
with this proposed rule, it appears that the Services are opting for
regulatory ambiguity and unconstrained discretion in deciding what
areas qualify as critical habitat. Can you explain why the Services are
proposing removal of these provisions?
Question 4. The courts have said that species are to be delisted
when they no longer meet the definition of a threatened species or
endangered species. The existing regulations use the word ``shall'' to
reinforce this mandatory obligation. The 2023 proposed rule to revise
the regulations implementing Section 4 of the Endangered Species Act
relating to listing of endangered and threatened species and
designating critical habitat would revise this to say that the
regulatory criteria demonstrate when ``it is appropriate to delist a
species.'' Can you explain this change in position, which appears to
diverge from what is required by statute?
Question 5. In the proposed rule to revise regulations for
interagency cooperation under Section 7 of the Endangered Species Act
published earlier this year, the Fish and Wildlife Service and the
National Marine Fisheries Service are considering revisions to their
long-standing interpretation of the scope of ``reasonable and prudent
measures.'' If this proposed language is finalized, instead of
minimizing the impacts of incidental take, the Services could require
that these impacts be fully offset. This change could impose
significant additional costs on project proponents. Can you explain the
legal basis/authority for this change since it appears contrary to the
plain language of ESA Section 7(b)(4)(C)(ii)?
Question 6. The rulemaking making revisions related Section 7 of
the ESA was issued days after a significant ruling from the U.S. Court
of Appeals from the D.C. Circuit, Maine Lobstermen's Association v.
National Marine Fisheries Service, No. 22-5238 (D.C. Cir. June 16,
2023).
Could you please clarify how this ruling may affect section 7 cons
ltation, as well as other areas of ESA implementation, including in the
development and issuance of a final rule?
______
Mr. Bentz. Thank you.
The Chair recognizes Mr. Tom Birmingham, Water Policy
Expert from Sacramento, California, for 5 minutes.
STATEMENT OF TOM BIRMINGHAM, WATER POLICY EXPERT, SACRAMENTO
CALIFORNIA
Mr. Birmingham. Thank you, Chairman Bentz, Ranking Member
Huffman, and members of the Subcommittee.
I also would like to thank you for the opportunity to share
my perspective on H.R. 520, an Act that would amend the
Endangered Species Act to provide that artificially propagated
species shall be treated the same under the Act as naturally
propagated species.
There is no real dispute that the Endangered Species Act
was enacted for laudable purposes, including the protection and
conservation of endangered and threatened species. Conflict
over the Act primarily revolves around how the Act is
implemented, and how its implementation affects human
activities including water resource management, agricultural
production, forestry management, energy development, and
commercial and recreational fishing. These conflicts have
extended to how the Fish and Wildlife Service and the National
Marine Fisheries Service treat artificially propagated fish or
wildlife under the Act.
Congress has expressed its policy choice that artificial
propagation of a species is a legitimate means by which
endangered or threatened species can be conserved. Section 3,
subparagraph 3 of the Act defines conserving and conservation
to mean the use of all methods and procedures which are
necessary to bring a listed species to the point at which the
measures provided in the Act are no longer necessary, including
propagation. Experience has demonstrated, without artificial
propagation, some species would likely have gone extinct.
Mr. McClintock mentioned the California condor. In 1982,
there were only 22 condors that survived in the wild, and to
avoid extinction, the Fish and Wildlife Service and other
agencies initiated a capture and a captive breeding program.
Five years later, all of the remaining wild condors were in
captivity. As of today, the Fish and Wildlife Service reports
that there are 300 wild, free-flying California condors that
make up its population.
Another species that likely would have gone extinct but for
artificial propagation is the Central Valley winter-run Chinook
salmon. In 2014 and 2015, drought killed nearly the entire
population of naturally propagated winter-run juvenile salmon
in the Sacramento River. In response, the Fish and Wildlife
Service and NOAA Fisheries and National Marine Fisheries
Service initiated a captive broodstock program at the
Livingston Stone National Fish Hatchery. In 2018 and 2019, the
program released 220,000 and 185,000 juvenile winter-run
Chinook salmon, respectively.
With respect to that program, the Assistant Administrator
for NOAA Fisheries' Central California Office stated, ``These
fish continue to impress us with their resilience and their
ability to survive, if given the opportunity, and we are
fortunate to have the hatchery to help us save this species.''
As members of the Subcommittee are aware, most decisions
made under the Act are made without regard to the economic or
other policy considerations. As the general manager of a water
agency in the San Joaquin Valley, I had the opportunity to
witness the socioeconomic impacts of water supply reductions
resulting from futile attempts over decades to protect the
Delta smelt. It now appears that the only means of protecting
that species from extinction is through undertaking artificial
propagation, which is currently being done by the Service in
cooperation with the California Department of Fish and
Wildlife.
But how the Service and NMFS treat artificially propagated
fish under the Endangered Species Act varies from species to
species. As outlined in my written testimony, many of the
decisions are based on policy considerations that are
articulated in various policy documents, but these documents
represent policy choices. Enacting H.R. 520 would represent a
congressional determination that such policy choices concerning
how artificially propagated fish and wildlife should be treated
under the Act should be made by Congress, rather than an
administrative agency.
Moreover, this policy choice has the potential to
facilitate the conservation and recovery of listed species
while providing balance to the implementation of the Act.
Again, I appreciate the opportunity to express my
perspective on H.R. 520, and I would welcome the opportunity to
respond to questions from members of the Subcommittee.
[The prepared statement of Mr. Birmingham follows:]
Prepared Statement of Thomas W. Birmingham, Water Policy Expert,
Sacramento, California
on H.R. 520
Chairman Bentz and members of the Subcommittee, my name is Thomas
Birmingham, and I am resident of Sacramento, California. In December
2022, I retired as the general manager of the Westlands Water District,
a position I held for more than twenty-two years. At various times, I
also served as general counsel for the District. Prior to my employment
with Westlands I was in private law practice, with an emphasis on water
law. I am honored to have been invited to testify at today's
legislative hearing on H.R. 520, a bill that would amend the Endangered
Species Act of 1973 to provide that artificially propagated individuals
of a species of fish or wildlife shall be treated under that Act as
equivalent to naturally propagated individuals.
I hope everyone would agree, the Endangered Species Act was enacted
for laudable purposes including to protect and conserve endangered and
threatened species and the ecosystems upon which they depend. Conflict
over the Act primarily revolves around how the Act is implemented and
how its implementation affects human activities, including water
resources management, agricultural production, forestry management,
energy development, and commercial and recreational fishing. These
conflicts include how agencies responsible for implementing the Act
treat artificially propagated animals.
Congress has already expressed its policy choice that artificial
propagation of a species is a legitimate means by which an endangered
or threatened species can be conserved. Indeed, section 3(3) of the Act
defines the terms ``conserve'', ``conserving'', and ``conservation'' to
mean the use of all methods and procedures which are necessary to bring
any endangered species or threatened species to the point at which the
measures provided in the Act are no longer necessary, including
``propagation.'' 16 U.S.C. Sec. 1532(3).
Experience has demonstrated that without artificial propagation,
some species likely would have gone extinct. The most notable example
is the California condor, which was listed in 1967 as endangered under
the Endangered Species Preservation Act of 1966, the predecessor to the
Endangered Species Act of 1973. According to the U.S. Fish and Wildlife
Service (``FWS''), by 1982, only 22 condors survived in the wild, and
in an effort to avoid extinction of the species, FWS began to capture
the remaining wild condors. Five years later, all remaining wild
condors were in captivity and a captive breeding program to save the
species was undertaken. FWS reports that today, the total wild free-
flying California condor population is more than 300 birds. https://
fws.gov/program/california-condor-recovery.
Another species for which captive breeding, or artificial
propagation, was a critical tool to avoid extinction is the Central
Valley winter-run Chinook salmon. According to the FWS, drought in 2014
and 2015 killed nearly the entire in-river winter-run juvenile salmon
population, which prompted FWS, along with the National Marine Fishery
Service (``NMFS''), to reinitiate a captive broodstock program at the
Livingston Stone National Fish Hatchery, part of the Coleman National
Fish Hatchery Complex. In 2018 and 2019, that program released 220,000
and 185,000 juvenile winter-run Chinook salmon, respectively. https://
www.fws.gov/story/2021-08/reclaiming-lost-population. With respect to
this program, Maria Rea, then Assistant Regional Administrator for NOAA
Fisheries' California Central Valley Office, stated ``[t]hese fish
continue to impress us with their resilience and their ability to
survive if given the opportunity,'' and ``[w]e were fortunate to have
the hatchery to help us save this species. . . .'' https://
www.fisheries.noaa.gov/feature-story/endangered-winter-run-chinook-
salmon-increase-millions-offspring-headed-sea.
I am confident that all the members of the Subcommittee are aware
that most decisions made under the Act are made without regard to
economic or other policy considerations. As the general manager of a
public water agency in the San Joaquin Valley that is dependent on a
federal reclamation project for its water supply, I witnessed the
socioeconomic impacts of water supply reductions resulting from futile
attempts over decades to protect from extinction the Delta smelt. It
now appears that the only hope to conserve this species is artificial
propagation, which is now being undertaken by the FWS, in cooperation
with the California Department of Fish and Wildlife.
But how artificially propagated fish are treated under the
Endangered Species Act varies from species to species. For instances,
spring-run Chinook salmon from the Feather River Hatchery Spring-run
Chinook Program are treated as part of the Central Valley spring-run
Evolutionary Significant Unit (``ESU''), but fish from numerous
hatcheries are excluded from Lower Columbia River Chinook salmon ESU.
50 CFR Sec. 223.102. The determination of whether to treat hatchery
fish the same under that Act as naturally propagated fish is based on
numerous policy considerations set forth in a rule published by NMFS
entitled ``Policy on the Consideration of Hatchery-Origin Fish in
Endangered Species Act Listing Determinations for Pacific Salmon and
Steelhead.'' 70 Fed. Reg. 37204.
This Policy on the Consideration of Hatchery-Origin Fish was
developed after the Court's decision in Alsea Valley Alliance v. Evans,
161 F. Supp.2d 1154 (D. Or. 2001), appeal dismissed, which set aside
NMFS's 1998 listing of Oregon Coast coho salmon because it
impermissibly excluded hatchery fish from the ESU listing. Prior to the
Court's decision in Alsea Valley Alliance, NMFS recognized that
artificial propagation could be used as a conservation tool and had the
potential to help speed recovery of natural populations, but NMFS did
not explicitly consider the contribution of hatchery fish to the
overall viability of an ESU, or whether the presence of hatchery fish
within the ESU might have the potential for reducing the risk of
extinction of the ESU or the likelihood that the ESU would become
endangered in the foreseeable future. 70 Fed. Reg. 37205.
The Policy on the Consideration of Hatchery-Origin Fish was
intended to provide policy guidance to NMFS personnel for considering
how hatchery-origin fish would be treated under the Endangered Species
Act. And despite including artificially propagated fish within an ESU
listing, conservation and recovery efforts are often almost exclusively
focused on naturally propagated individuals.
The enactment of H.R. 520 would represent a congressional
determination that such policy choices should be made by Congress,
rather than an administrative agency. Moreover, this policy choice has
the potential to facilitate the conservation and recovery of listed
species, while providing balance to avoid often draconian impacts
resulting from implementation of the Endangered Species Act. I would
welcome any questions from members of the Subcommittee.
______
Mr. Bentz. Thank you. The Chair recognizes Dr. Sharon
Megdal, Director of the Water Resources Research Center at the
University of Arizona, Tucson.
Dr. Megdal, you are recognized for 5 minutes.
STATEMENT OF SHARON B. MEGDAL, DIRECTOR, WATER RESOURCES
RESEARCH CENTER, UNIVERSITY OF ARIZONA, TUCSON, ARIZONA
Dr. Megdal. Thank you, Mr. Chairman, Ranking Member,
members of the Subcommittee, and Representative Ciscomani. I
appreciate the opportunity to provide input on H.R. 5874, and I
thank Representative Ciscomani and co-sponsor, Representative
Stansbury, for introducing this bill to reauthorize the United
States-Mexico Transboundary Aquifers Assessment Program, and
modify a restriction on the ability to study additional
transboundary aquifers along the border shared by Arizona and
the Mexican state of Sonora.
Like all over the country and world, water security and
reliability are critical concerns along our shared border with
Mexico, where groundwater is a particularly important water
source for many communities, and the only water source for
some. Characterizing groundwater conditions and aquifer
properties enables communities along the border to better
understand their water supply conditions and implications of
their water utilization. Assessments enable more informed
decision-making by water users, water managers, and
policymakers at multiple levels.
The original legislation authorizing the TAAP, as we call
it, Transboundary Aquifer Assessment Program, became law in
late 2006. It authorized the Secretary of the Interior, through
the U.S. Geological Survey, USGS, to collaborate with the
states of Arizona, New Mexico, and Texas, the country of
Mexico, and others to characterize priority transboundary
aquifers. The TAAP has focused thus far on the four priority
aquifers specified in Public Law 109-448, and I provided you in
my written testimony a map that shows where those aquifers are
located along the border.
Given the program's focus on internationally-shared
aquifers, the International Boundary and Water Commission, or
IBWC, has played a key coordination role for the efforts that
are carried out binationally. The IBWC issued a joint report
that has established the cooperative framework that has guided
the collaborative binational efforts to date. Teams have been
working on meeting program objectives through many
investigations, reports, presentations, and dialogues.
And I brought with me today, one copy, it is very heavy, I
am going to leave it with Representative Ciscomani, a study
that was completed in 2016, the binational study of the
Transboundary San Pedro Aquifer, a very important river aquifer
system for Arizona. And what is notable about this, aside from
the fact that it contains beautiful maps and useful information
that has been harmonized across the two countries, is that it
is fully bilingual. If you turn it over, it is fully in
Spanish, and it is really a first of its kind.
The process of collaboration that went into putting that
together made for seamless transition to working on the
binational study for the Santa Cruz Aquifer, our second
priority aquifer in Arizona, and that is expected to be done
soon.
We also work very hard on trying to make this an
understandable program for people. So, we also have this 6-page
brochure, also fully bilingual, that we have produced, and I
have brought copies for all of the Committee members to have of
that. And I referenced that in my written testimony.
Assessments are performed aquifer by aquifer, or community
by community because the hydrologic geologic recharge and other
conditions vary. Groundwater is actually a very local resource.
These collaborative work efforts continue.
The USGS and the Water Resource Research Institutes from my
university, the one I direct, New Mexico State University, and
Texas A&M University have developed a 5-year strategic program
for going forward, and it focuses on things including
stakeholder engagement and capacity building, looking at the
socioeconomic context, putting together accessible and
hydrologic studies.
These proposed amendments do two things. They would enable
us to continue this program going forward, and they enable
Arizona to have the flexibility to add priority aquifers, which
the current version of the law does not have, but the states of
New Mexico and Texas can add those. So, this amendment would
modify that to restrict only a small portion of the border,
instead of the entire border along Arizona.
As someone who has worked on this program since its
inception, I can tell you reauthorization will reinvigorate and
reinforce the robust efforts to bolster water security.
Thank you for the opportunity to testify today.
[The prepared statement of Dr. Megdal follows:]
Prepared Statement of Sharon B. Megdal, Ph.D., Director, Water
Resources Research Center, A Cooperative Extension Center;
Faculty Member, Department of Environmental Science and Cooperative
Extension, The University of Arizona
on H.R. 5874
Mr. Chairman, Members of the Subcommittee, and Representative
Ciscomani, thank you for the opportunity to provide input on H.R. 5874,
which would amend the United States-Mexico Transboundary Aquifer
Assessment Act (Act). I thank Representative Ciscomani and co-sponsor
Representative Stansbury for introducing this Bill to reauthorize the
United States-Mexico transboundary aquifer assessment program and
modify a restriction on the ability to study additional transboundary
aquifers along the border shared by Arizona and the Mexican state of
Sonora.
Background
Like elsewhere in the Southwest--and the Nation--water security and
reliability are critical concerns along the border shared by the United
States and Mexico. Along the border, groundwater is a particularly
important source of water for many communities, and it is the only
source for some. Due to its invisibility, assessment of groundwater
quantity and quality are needed. Characterizing groundwater conditions
and aquifer properties will enable communities along the border to
understand their water supply conditions and the implications of their
water utilization. Assessments enable more informed decision making by
water users, water managers, and policy makers at multiple levels.
The original legislation authorizing the Transboundary Aquifer
Assessment Program, codified as P.L. 109-448, became law in late 2006.
It authorized the Secretary of the Interior, through the U.S. Geologic
Survey (USGS), to collaborate with the states of Arizona, New Mexico
and Texas, the country of Mexico, and others to characterize priority
transboundary aquifers. The Act established a partnership between the
USGS and the federally authorized water resources research institutes
per the Water Resources Research Act of 1964, as amended, for the
participating states. The University of Arizona Water Resources
Research Center, for which I serve as Director, is the federally
authorized water institute for Arizona, with the New Mexico Water
Resources Research Institute at New Mexico State University and the
Texas Water Resources Institute at Texas A&M University being the other
two participating university partners. I had the honor or providing
testimony at the May 2006 House hearing on the original authorization,
H.R. 469 at the time, and I have been involved in implementing the
program ever since its approval. This testimony reflects this
involvement, along with perspectives gained from my professional
academic and non-academic work on groundwater policy and management
that extends beyond 30 years.
Aquifers contain the groundwater on which many communities across
the country depend. Because groundwater is not visible or accessible
like river water, assessments are necessary to characterize the water
quantity and quality of the resource, including the rate at which
groundwater is being depleted and recharged. Many communities along our
shared border with Mexico rely on groundwater. Current research has
established that close to 30 aquifers along this border can be
considered transboundary. The national frameworks of the United States
and Mexico for managing groundwater are quite different. How states and
communities within the United States manage groundwater varies
considerably. The Transboundary Aquifer Assessment Program authorized
by P.L. 109-448 has enabled collaborative research on groundwater and
the aquifers that hold it, along with binational dialogue, which has
contributed considerably to developing a common understanding of this
critically important water resource. With sound, verifiable information
in hand, water users, water managers, and policy makers are better
equipped to make decisions to support the long-term viability of their
economies and communities along the border.
An Overview of Transboundary Aquifer Assessment Program Efforts to Date
The Transboundary Aquifer Assessment Program has focused on the
four priority aquifers specified in P.L. 109-448, which are shown on
the map below. The map can be accessed at https://webapps.usgs.gov/
taap/index.html.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Given the program's focus on internationally shared aquifers,
the International Boundary and Water Commission (IBWC) has played a key
coordination role for efforts carried out binationally. The IBWC is the
binational body responsible for implementing the 1944 Water Treaty for
the ``Utilization of waters of the Colorado and Tijuana Rivers and of
the Rio Grande.'' It is the key diplomatic mechanism for working on
water matters along the border. The IBWC's 2009 three-page ``Joint
Report of the Principal Engineers Regarding the Joint Cooperative
Process United States-Mexico for the Transboundary Aquifer Assessment
Program'' established the binational cooperative framework that has
guided the collaborative binational efforts to date. The six Principles
of Agreement are as follows. 1. Activities described under this
agreement should be beneficial to both countries. 2. Aquifers to be
jointly studied, as well as the scope of the studies or activities to
be done on each aquifer, should be agreed upon within the framework of
the IBWC. 3. The activities should respect the legal framework and
jurisdictional requirements of each country. 4. No provisions set forth
in this agreement will limit what either country can do independently
in its own territory. 5. Nothing in this agreement may contravene what
has been stipulated in the Boundary and Water Treaties between the two
countries. 6. The information generated from these projects is solely
for the purpose of expanding knowledge of the aquifers and should not
be used by one country to require that the other country modify its
water management and use.
The USGS website on the Transboundary Aquifer Assessment Program
(TAAP) (https://webapps.usgs.gov/taap/index.html) provides information
about TAAP studies and products, many of which have been carried out on
the US side of the transboundary aquifers. The USGS site lists these
key TAAP objectives:
Develop binational information and shared databases on
groundwater quantity and quality;
Identify and delineate transboundary aquifers of
importance;
Develop binational criteria for determination of priority
transboundary aquifers;
Assess the extent, availability, and movement of water in
transboundary aquifers and the interaction with surface
water;
Develop and improve groundwater-flow information for
binational aquifers to facilitate water-resource assessment
and planning;
Analyze trends in groundwater quality, including salinity
and nutrients;
Apply new data, models, and information to evaluate
strategies to protect water quality and enhance supplies;
and
Provide useful information to decision makers, including
assessments of groundwater management institutions and
policies.
Teams have been working on meeting these objectives through many
investigations, reports, presentations, and dialogues. A noteworthy
dialogue extending across the border region was the 2019 border
groundwater summit convened by IBWC. Ongoing dialogue has been fostered
by meetings of technical project teams and less formal dialogues, such
as the Permanent Forum of Binational Waters (https://
www.binationalwaters.org/), which includes significant coverage of
groundwater.
One of the earlier binational reports is the 2011 report,
Hydrogeological Activities in the Conejos-Medanos/Mesilla Basin
Aquifer, Chihuahua, Phase I, which was facilitated by IBWC. The 2016
Binational Study of the Transboundary San Pedro Aquifer (``San Pedro
report'') was co-produced by the International Boundary and Water
Commission, USGS, the University of Arizona, the University of Sonora,
and CONAGUA (Mexico's National Water Agency). Along with the 2011
study, this first fully bilingual, binational study of a transboundary
aquifer can be accessed online at the USGS TAAP website.
The San Pedro report includes compilation of much existing
information and harmonization of maps to provide visual representation
of the data and information. Instead of having maps that end on the
respective national borders, which had been the case, this report
includes binational maps that show the nature of the aquifer system
that spans the border. All information, including maps, went through
careful review by U.S. and Mexican experts and is published in both
English and Spanish. While much of the content is highly technical, the
importance of groundwater to supporting the economies of the border
communities is underscored in the report's concluding section. A six-
page, bilingual bulletin on the San Pedro report (appended to this
Testimony) demonstrates efforts to present the information to broad
audiences. The report and bulletin can be accessed at https://
wrrc.arizona.edu/programs/taap-transboundary-aquifer-assessment--
program/taap-official-binational-reports.
The process of developing the binationally endorsed San Pedro study
involved constant interactions of the binational technical team. The
mutually respectful approach enabled seamless transition to the
development of a similarly structured binational report for the
transboundary Santa Cruz aquifer system, which is nearing completion.
The Santa Cruz aquifer system provides the groundwater for the ``Ambos
Nogales'' region, an important border region for transportation of
produce from Mexico to the United States and other products. Nogales,
Sonora, which is much larger in population than Nogales, Arizona, is
home to many maquiladora factories. The Arizona TAAP team has developed
a water balance modeling framework and performed a series of water
balance analyses, which show decline in groundwater levels and over-
drafting of the aquifers. The modeling approach can be used to study
impact of various water management decisions.
These and additional studies of the aquifers that support
population and economic centers along the border, such as the El Paso-
Ciudad Juarez area, increase understanding of the uncertainties
associated with changing precipitation patterns and increased pumping.
They contribute to more informed water management decisions. However,
additional transboundary assessment, particularly groundwater modeling,
is needed. In some areas, no modeling has been done. In other regions,
updated, binationally developed numerical models would provide more
accurate representation of the implications of pumping and recharge on
groundwater supplies.
Assessments are performed aquifer-by-aquifer or community-by-
community because the hydrologic, geologic, recharge, and other
conditions vary by aquifer. Groundwater is withdrawn to support
municipal, industrial and agricultural uses, and groundwater supports
natural riparian systems. Groundwater extraction is often occurring at
rates that exceed naturally occurring recharge. Recharge rates are
dependent on a host of factors, including the connected surface water
flows, which themselves involve significant variability.
Many TAAP products can be found at https://webapps.usgs.gov/taap/
products.html. Published in 2023, the book version of the special issue
of the journal Water entitled ``Advances in Transboundary Aquifer
Assessment,'' which was guest edited by USGS scientist Dr. Anne-Marie
Matherne and me, includes several recent TAAP-funded analyses. The free
PDF version of the book can be accessed at https://www.mdpi.com/books/
book/7794. Most publications are freely accessed. The University of
Arizona Water Resources Research Center maintains websites that catalog
reports and publications in English (https://wrrc.arizona.edu/programs/
taap--transboundary-aquifer-assessment-program) and Spanish (https://
wrrc.arizona.edu/programs/programa-de-evaluacion-de-acuiferos-
transfronterizos-taap). New Mexico State University's TAAP activities
and products can be accessed at https://taap.nmwrri.nmsu.edu/. Texas
A&M has a transboundary water portal, from which information about TAAP
can be found. See https://transboundary.tamu.edu/taap/. Additional
references can be provided on request.
Through Fiscal Year 2023, a total of $10 million has been
appropriated for the Transboundary Aquifer Assessment Program. The
authorizing legislation specified that 50% of any appropriated funding
remains with the USGS, with the other 50% distributed to the
participating Water Resources Research Institutes, though the
legislation does not specify how the funding is distributed across the
states. According to my records, funding has occurred as shown in the
table below. The University of Arizona Water Resources Research Center
has received one-sixth of the amounts noted below.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The collaborative work continues. The USGS and the Water
Resources Research Institutes have prioritized five over-arching tasks
for the five-year period beginning with Fiscal Year 2023:
1. Stakeholder Engagement and Capacity Building
2. Socio-Economic Context, Governance, and Policy [Note: Although
USGS does not preform research related to water policy,
personnel at the partner universities do engage in policy
analyses.]
3. Binational Groundwater Atlas: Data Management, Mapping, and
Visualization
4. Aquifer prioritization and vulnerability assessment
5. Hydrologic Studies to Understand Water Availability Challenges
Facing Transboundary Aquifers--Stressors from Population,
Industry, Agriculture, Drought, and Climate Variability
The extent to which each is accomplished will depend on funding
availability. The U.S. team is actively engaged in discussions with
Mexico regarding their participation, particularly with Atlas
preparation and hydrologic modeling and data compilation. The five-year
plan notes that substantial time and effort are required for binational
reports. Fortunately, the international relationships are good and the
framework for cooperation has been established. Some of the
international work of TAAP team members has been to underscore the
strong binational water cooperation we have at our country's southern
border. Although cross-border work requires substantial time, the
partners can build upon past experiences with carrying out multi-agency
reviews and translation of reports to identify opportunities to
streamline these processes going forward. There is commitment to work
together across the USGS and the university-based water institutes and
across the international border.
The Proposed Amendments included in H.R. 5874
Although the Transboundary Aquifer Assessment Program has
accomplished a lot with the funding made available, there is still much
work to be done. The partnerships established through TAAP have
provided a very strong foundation for additional work. The processes
and collaborations are in place for continuing and expanding these
efforts.
In addition to the extension of the authorization period, H.R. 5874
includes a provision to enable the designation of additional priority
aquifers along the Arizona-Sonora border. The original law envisioned
the specification of additional priority aquifers along New Mexico's
and Texas' border regions. However, in 2006, some water entities wanted
to keep the very western, Colorado River portion of Arizona's border
region outside of the Transboundary Aquifer Assessment Program. Between
the time of the May 2006 hearing and the final passage of the
legislation, language prohibiting designation of any additional
priority aquifers along the Arizona-Sonora border was added. Section 2
(a) of H.R. 5874 would refine that prohibition by limiting it to the
``Yuma groundwater basin designated by the order of the Director of the
Arizona Department of Water Resources dated June 21, 1984''. This
change would enable other transboundary aquifers along the border,
except the Yuma groundwater basin, to be eligible for study as part of
the Transboundary Aquifer Assessment Program.
As someone who has worked on this program since its inception, I
can attest to the productive collaboration of all involved to provide
needed analyses and insights. Reauthorization will reinvigorate and
reinforce the robust effort to bolster water security for our border
communities and economies.
Thank you, Mr. Chairman, Members of the Committee, and
Representative Ciscomani, for the opportunity to present this
testimony.
*****
Screenshots of the six-page bulletin on the Binational Study of the
Transboundary San Pedro Aquifer
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted for the Record to Sharon B. Megdal, Ph.D.,
Director, University of Arizona Water Resources Research Center
Questions Submitted by Representative Ciscomani
Question 1. You have worked on groundwater issues at the local,
regional, national and international levels, could you please speak to
the nature of the work you have done in this space and the key findings
you have made in your career as it pertains to groundwater management?
Answer. Groundwater has been central to my work since the early
1990s, when I served as Executive Director of the regional Santa Cruz
Valley Water District, which was based in Tucson, Arizona. It was
during that period that I became involved in groundwater recharge,
sometimes referred to as managed aquifer recharge. The district
developed a recharge project in partnership with a local irrigation
district and developed an augmentation plan. Later in the 1990s, I
served as a water resources consultant to Pima County (AZ) and others.
My work included multiple collaborative efforts to recharge surface
water delivered through the Central Arizona Project and effluent. As a
consultant, I worked on studies, financing plans, and permit
applications. Since 2002, when I joined the staff of the University of
Arizona Water Resources Research Center, I have worked on many
groundwater management issues, including examination of differences
across states in how they manage and regulate groundwater quantity and
quality. My groundwater-focused, university-based research, education,
and Extension work was supplement over a 12-year period during which I
served on the popularly elected, volunteer board of directors for the
Central Arizona Project (2009-2020). Throughout my two six-year terms,
I was a member of the Central Arizona Groundwater Replenishment
District and Underground Storage Committee. I served as committee chair
for five years. Groundwater is the source of over 40% of water used in
Arizona, with many Arizonans 100 percent dependent on groundwater.
My local, regional, and state-wide efforts expanded nationally with
some state surveys we conducted on water quantity and water quality
governance and management. Due to our nation's decentralized approach
to groundwater governance and management, there is significant
variation in state frameworks. We sought to characterize similarities
and differences in approaches and challenges across the United States.
My work took on more international dimensions after the authorization
of the Transboundary Aquifer Assessment Program (TAAP) and the
binational aquifer assessment efforts with Mexico began. I have been
part of global dialogues to raise the visibility of groundwater as a
key water source, regularly pointing to our regional and border
groundwater-focused efforts. Along with TAAP work, which focuses on
characterizing transboundary aquifer systems and groundwater
conditions, I have continued to work on managed aquifer recharge, which
is playing a more important role than community-driven and user-driven
water management. My comparative analyses include water management in
water-scarce, growing regions. Unlike many who work on groundwater, I
am not a hydrologist. Rather, I focus on groundwater policy and
management. Through my writings, lectures, and teaching, I endeavor to
make things understandable so that individuals of varying backgrounds
can draw from the practices I have analyzed. My work is catalogued in
my CV, which can be accessed from this page: https://wrrc.arizona.edu/
person/sharon-b-megdal. A perusal of my publications and presentations
will demonstrate the depth, breadth, and real-world relevance of my
groundwater work.
Key findings and contributions of my work include:
Managed aquifer recharge is an important tool for
furthering achievement of water management goals,
especially in arid to semi-arid regions.
Arizona's regulatory framework for aquifer recharge is
exemplary and can serve as a model for other jurisdictions.
Efforts to characterize aquifers and groundwater
conditions can assist communities and water users to better
manage their groundwater resources.
Functioning cooperative processes for working across
borders and communities are crucial to identifying pathways
to solutions to water challenges.
Water users, including individual consumers, value
learning more about where their water comes from,
especially when they cannot see the source, as is the case
with groundwater.
Question 2. The existing TAAP program has several different
participants, both in the Southwest and Mexico, can you elaborate on
how all the different participants play a role in the collection,
analysis and presentation of the information they find on the water in
transboundary aquifers? Why would it be beneficial for H.R. 5874 to
reauthorize this program?
Answer. I am pleased to report that TAAP's collaborative efforts
are strong. On the U.S. side, the Transboundary Aquifer Assessment Act
(P.L. 109-448) authorized the Secretary of the Interior to establish a
transboundary aquifer assessment program, with the U.S. Geological
Survey (USGS) being the lead implementing agency. Section 4.a of P.L.
109-448 included this language regarding the establishment of the
program:
(a) IN GENERAL.--The Secretary, in consultation and cooperation
with the Participating States, the water resources research
institutes . . . and the IBWC, as appropriate, shall carry out
the United States-Mexico transboundary aquifer assessment
program to characterize, map, and model priority transboundary
aquifers along the United States-Mexico border at a level of
detail determined to be appropriate for the particular aquifer.
Because IBWC historical involvement in groundwater assessment had
been limited to that associated with implementing Minute 242 to the
1944 Water Treaty, the role of IBWC (International Boundary and Water
Commission) was not clear back in 2006. However, discussions subsequent
to the late-2006 passage of P.L. 109-448 quickly clarified that
establishing a binational assessment program required IBWC involvement
due to the Mexican section's role in all binational waters, including
groundwater. The facilitating role that began with the development and
adoption of the 2009 Principal Engineers' Report continues to this day.
While each country can assess aquifers on their respective sides of the
border, binational collaborative efforts necessitate IBWC involvement.
USGS serves as the federal implementing agency for the United
States. Along with engaging in assessment efforts, USGS manages the
flow of funding to the participating federally authorized water
resources research institutes. The process occurs through an annual
proposal and budgeting process, with budgeted amounts dependent on
federal appropriations. For Mexico, Mexico's national water commission,
CONAGUA, is involved. For the Arizona-Sonora assessment efforts,
University of Sonora experts have participated. Other federal and state
agencies, along with Mexican university experts, have engaged. NGO
representatives and state and local entities have engaged as well. Over
TAAP's history to date, funding has been at times intermittent and not
necessarily synchronized across the two federal governments.
Nevertheless, coordination on binational efforts along the Arizona-
Sonora border has continued with little interruption. In addition to
completion of the Binational Study of the Transboundary San Pedro
Aquifer, team member representing the five entities whose logos are on
the cover of the San Pedro study (IBWC, USGS, University of Arizona,
CONAGUA, and University of Sonora) have continued working on a similar
study for the transboundary Santa Cruz Aquifer. More will be said about
these collaborative efforts in my response to Question 3.
Binationally completed efforts to date have included compiling and
harmonizing existing data, but the data are sometimes associated with
out-of-date modeling or measurements. New investigations have been
undertaken, including water balance modeling conducted by members of
the University of Arizona team. The binational cooperative efforts to
date have been limited to the four priority aquifers specified in P.L.
109-448. There are many more aquifers along the border, and additional
assessment efforts are needed for the four priority aquifers.
Reauthorization will signal federal recognition that the
transboundary aquifer assessment program is needed to assist border
communities in developing a common understanding of their aquifer and
groundwater quantity and quality, which will feed into more informed
groundwater management decision making. In addition to the technical
studies, reauthorization will enable the partners to work together to
share the information broadly on both sides of the border, always in
recognition of the roles of national, state, and local jurisdictions
and water users. Reauthorization will signal recognition that
groundwater, which is invisible, is a critical water resource. The
reauthorization language includes a provision enabling specification of
additional priority aquifers along the Arizona-Sonora border, except
for the Arizona Department of Water Resources designated Yuma Basin.
This modification to the original authorizing language is critical to
enabling assessment of additional transboundary aquifers by program
partners to serve more communities along the Arizona-Sonora border.
Question 3. What would you say has been the greatest accomplishment
made by the TAAP program to date, and what projects do you think will
be most impactful for border communities moving forward should the
program be reauthorized.
Answer. Of course, I am proud of all of TAAP's contributions to
understanding the aquifer and groundwater conditions. I am proud of the
multi-faceted efforts, including the binational mapping that is very
important to visualizing the data. I am proud that our efforts led to
binational approval of the first binational and fully bilingual aquifer
study, the Binational Study of the Transboundary San Pedro Aquifer. If
I must single out the greatest accomplishment to date, I will point to
the establishment of the binational partnerships and processes to carry
out the program effectively. These partnerships, which enabled
completion of the San Pedro study, provide the strong foundation exists
for future efforts. Excellent working relationships exist across
agencies, across experts, and across borders. The outputs are evidence
of this. Additionally, I point to an article by Callegary et al., which
explains the value of the collaborative processes (https://doi.org/
10.1016/j.ejrh.2018.08.002). My international observations and
interactions indicate that cooperative relationships cannot be taken
for granted; they can be difficult to accomplish. Binational
partnerships are critical to binational work plan development and
implementation and lead to acceptance of assessment results by the
affected individual and entities. It is sometimes said that imitation
is the greatest form of flattery. The partners working on transboundary
aquifers elsewhere along the border have recognized the benefits of
developing the strong working partnerships and processes. H.R. 5874
will enable more support for border communities and their efforts to
understand and manage their groundwater resources. I will conclude as I
concluded my written testimony by stating that reauthorization will
reinvigorate and reinforce the robust effort to bolster water security
for our border communities and economies.
Thank you for the opportunity to respond to these questions.
______
Mr. Bentz. Thank you.
The Chair now recognizes Dr. Barbara Taylor, the Red List
Coordinator for the Cetacean Group, a specialist group with the
International Union for the Conservation of Nature in San
Diego, California.
You are recognized for 5 minutes.
STATEMENT OF DR. BARBARA TAYLOR, RED LIST COORDINATOR FOR THE
CETACEAN SPECIALIST GROUP, INTERNATIONAL UNION FOR THE
CONSERVATION OF NATURE, SAN DIEGO, CALIFORNIA
Dr. Taylor. Thank you, Chairman Bentz and Ranking Member
Huffman, for inviting me to testify at this hearing.
I have been working with marine mammals threatened with
extinction for 43 years, and coordinate assessing the risk of
extinction for whales, dolphins, and porpoises for the IUCN Red
List.
The bill drafted by Representative Graves and considered
here today would result in delaying conservation actions for
the most endangered large whale in the world, Rice's whale, a
whale that, as far as we know, is currently found entirely in
U.S. waters.
The best available science demonstrates that there are only
about 50 individuals now alive in the Gulf of Mexico, which is
the lowest abundance for a species of large whale ever
recorded. Today, I present evidence that delaying actions for a
species with extremely small numbers is dangerous. The best
available science is consistent with the presence of this
species in the western, central, and eastern, northern Gulf of
Mexico, and oil industry activities are serious threats to the
species.
I have witnessed extinction. In 2006, we searched for the
last Yangtze River dolphins to take them into lakes until
threats could be removed from their natural river habitat. We
failed to find any. The collapse happened much faster than
anticipated. Once the Yangtze River dolphin became extinct,
Mexico's vaquita porpoise became the world's most endangered
marine mammal. It too declined very quickly, losing half of the
species each year over the last decade. Now, only a few
handfuls remain.
Journalists often ask me the depressing question, ``If
vaquita go extinct, who is next? '' The next most endangered
marine mammal species in the world is Rice's whale. And without
protection, it is likely to be the next to go extinct.
I served on the team of scientists that assessed the status
of these whales when they were petitioned for ESA listing.
Three maps shaped my pictures of threats to these whales:
records of their historical distribution, locations of oil and
gas platforms, and tracks of shipping. Areas with historical
records indicating suitable habitat now had oil and gas
platforms instead of whales. Heavy volumes of ship traffic went
right through the shelf break habitat historically favored by
these whales. The possibility for ships to strike them was
obvious.
The review concluded that many of the activities routinely
associated with offshore energy development pose serious or
severe threats to these whales.
Five years of study to obtain more evidence on the whales'
habitat and distribution followed. Acoustics offered the best
method for recording distribution for rare marine mammals.
Acoustic studies published in peer-reviewed scientific journals
have visually validated and characterized calls made only by
Rice's whales. Five acoustic recorders were placed for a year
along the shelf break from Texas to Florida, and the western-
most recorder detected Rice's whales multiple days in every
season throughout the year.
Research has also shown the whales' primary prey is
distributed in the same shelf break habitat across the northern
Gulf.
There is no scientific reason to delay conservation actions
because more data are needed to delineate Rice's whales
distribution. Evidence from tagged whales show that they rest
near the surface at night, making them vulnerable to ship
strikes. The one known ship strike death exceeds allowable
human-caused mortality, according to the Marine Mammal
Protection Act. The actual number of deaths is likely to be far
higher, given that few carcasses of offshore whales are found
on beaches. Various models found that the oil industry
accounted for over 30 percent of strike risk from all vessels.
The proposed bill and requiring additional assessments far
beyond the accepted process of scientific peer review would
significantly delay any new measures to address these threats.
Gathering evidence on extremely rare species is a time-
consuming process, time the species may not have.
It is both a privilege and a burden to host the only large
whale species found as far as is known within the waters of a
single nation. It is a privilege because the Gulf of Mexico
must be a very special place to have its very own large whale
species. It is a burden because such a species is naturally
vulnerable and requires special protections.
Now that Rice's whales number only around 50 individuals,
those protections must be prompt and adequate to avoid the fate
of the Yangtze River dolphin and the likely fate of vaquitas.
Neither China nor Mexico have the strong environmental
legislation and rule of law that the United States has been a
world leader in implementing. It would be a mistake to weaken
or delay the protections this country has established in the
ESA. Doing so risks causing the first human-driven extinction
of a large whale.
Thank you for this opportunity to testify.
[The prepared statement of Dr. Taylor follows:]
Prepared Statement of Dr. Barbara Taylor, International Union for the
Conservation of Nature (IUCN)
Red List Coordinator for the Cetacean Specialist Group
on H.R. 6008
Thank you Chairman Bentz, and Ranking Member Huffman for inviting
me to testify at this hearing, and particularly on the draft bill
sponsored by Representative Graves titled ``To prohibit the
implementation of certain documents until the Assistant Administrator
for Fisheries of the National Marine Fisheries Service issues documents
relating to the Rice's whale.''
I have been working with marine mammals threatened with extinction
for 43 years. I led the largest marine mammal genetics unit in the
world during my 30 years with NOAA's Southwest Fisheries Science
Center. I've been the International Union for the Conservation of
Nature (IUCN) Red List Coordinator responsible for assessing the risk
of extinction for the world's cetaceans (whales, dolphins and
porpoises) for 15 years, which gives me a unique overview on the
threats facing these special animals.
The bill drafted by Representative Graves and considered here today
would result in delaying conservation actions for the most endangered
large whale in the world, Rice's whale, a whale that, as far as we
know, is currently found entirely in U.S. waters. The best available
science demonstrates that there are only about 50 individuals now alive
in the Gulf of Mexico (Garrison et al. 2020), which is the lowest
abundance for a species of large whale ever recorded.
My testimony today presents evidence on the following: 1) delaying
actions for species with extremely small numbers is dangerous, 2)
Rice's whale are a legitimate and critically endangered species, 3) the
best available science is consistent with presence of this species in
the western, central and eastern northern Gulf of Mexico, and 4) ship
strikes, oils spills and seismic airgun noise, effects associated with
offshore oil and gas development, are serious threats to the species.
My long experience with endangered marine mammals includes being
witness to extinction. In 2006 I led one of two vessels surveying the
Yangtze River to locate the last of the Yangtze River Dolphins. If we
had been successful, our short-term goal was to take those dolphins
into protected lakes until threats could be removed from their natural
river habitat. We failed to find any. The last dolphin of the 30-
million-year-old species had perished when no one was looking. The
collapse happened much faster than anticipated. Witnessing extinction
is a soul-crushing experience.
Once the Yangtze River Dolphin became extinct, Mexico's vaquita
porpoise had the dubious distinction of being the world's most
endangered marine mammal. By 2006 I had already researched vaquitas for
15 years, and I and my fellow Mexican conservation scientists
immediately published an article entitled, ``Saving the vaquita:
Immediate action, not more data'' (Jaramillo-Legorreta et al. 2007).
Actions to eliminate the only threat to this species, entanglement in
gillnets, still have not happened. The sad story of this species is
that it too declined very quickly, losing half of its abundance each
year over about the last decade. Now only a few handfuls remain.
Journalists often ask me the depressing question ``If vaquita go
extinct, who's next?'' The next most endangered marine mammal species
in the world is Rice's whale, and, without protection, it is likely to
be the next to go extinct.
Rice's whale, vaquitas and Yangtze River dolphins are all
classically vulnerable species: their distribution is small;
consequently, their numbers are relatively few, and most importantly
their entire distribution is under threats against which they have no
natural defenses. One is extinct, one perilously close to extinction
and the other, Rice's whale, is at such low numbers that each
individual is important for the species' survival. It is the only large
whale that, as far as we know, is currently found only in our country's
waters.
Rice's whales are listed as ``Critically Endangered'' on the IUCN
Red List because the species is in critical condition. I often use
medical analogies because everyone understands the idea of critical
condition for someone admitted to the emergency room. Imagine a patient
brought to the emergency room who is losing enough blood that their
life could be lost quickly if blood flow is not stopped. The doctor
would not delay dealing with the known need to stop the bleeding
because they wanted to know about other potential health issues. Delay
actually causes harm to the patient. Similarly, with dwindling species,
actions must be prompt to give the species the best chance to avoid
extinction. If you know of threats that have killed whales or
significantly threaten their survival, those threats must be addressed
as efficiently as possible.
When NOAA is petitioned to list a species under the Endangered
Species Act (ESA) a team of scientists is assembled to review the best
available science. I have served on many of those teams and was asked,
in 2014, to serve on the team evaluating Rice's whale, which was then
referred to as the Bryde's whale in the Gulf Mexico. At the time, the
evidence to describe these animals as a new species was still being
assembled. Nevertheless, it was clear that these whales met the
definition of animals deserving the protection of the ESA.
I had not previously done work in the Gulf of Mexico. Records from
whalers showed a baleen whale that was found along the shelf-break in
the northern Gulf primarily south of Louisiana and in similar depths in
the southern Gulf, in Mexican waters (Reeves et al. 2011). Between 2009
and 2015, most sightings were in waters off Mississippi and Florida
with no sightings south of Louisiana.
Two maps were highly influential in shaping my picture of threats
to these whales. In our Status Review (Rosel et al. 2016), Figure 9B
shows oil and gas platforms as of September 2014. The overlap between
the whalers' locations south of Louisiana and the oil and gas platforms
was startling to me because whales were no longer being seen in their
historical range in areas covered with oil and gas platforms. Figure 17
in our Review shows the density of all northern GOM vessel traffic in
October 2009-2010, with the highest shipping traffic in yellow and red.
This figure was equally startling, and worrying, because it revealed
that heavy volumes of ship traffic went right through the shelf-break
habitat historically favored by these whales. In fact, the volume was
so heavy that it looked like blow torches shooting off the coasts of
Louisiana and Texas and into whale habitat. The possibility for ships
to strike these whales was obvious.
The Status Review contains tables of the team's rating of threats
according to both severity and certainty given the best available
scientific evidence. The greatest risk was oil spills and spill
response, with unanimous agreement that this was a risk with high
severity and nearly unanimous agreement that certainty about the threat
was high. Other threats deemed to be nearly as severe were `energy
exploration and development', `vessel collision', `seismic surveys',
`stochastic and catastrophic events' and `the small population size
itself', which I'll talk more about in a moment.
The team's work was published in 2016 (Rosel et al. 2016), but the
species was not listed until 2019. The Status Review and the ESA
listing process prompted a five-year study by NOAA and its research
partners, including Scripps Institution of Oceanography and Florida
International University, to obtain more evidence on the whale's
habitat and distribution.
Before discussing that research, I'd like to discuss how the status
review team dealt with the question of whether these whales were a
species, a subspecies or a Distinct Population Segment. Describing new
subspecies and species is an active field for whales, dolphins and
porpoises. Most species are described using collections of adult male
skulls. You could go to the Smithsonian and pull drawers out full of
grizzly bear skulls or American bald eagle skulls, but you couldn't
pull out a drawer of whale skulls. Nor would the public tolerate going
out and collecting such skulls. Fortunately, we can now use genetics to
understand how whales in different oceans differ from one another.
Genetics research on these whales began in the early 2000s and by
2004 data were sufficient to suspect that Rice's whales differed
significantly from other baleen whales. By the time of the Deepwater
Horizon, Rosel and Wilcox had assembled DNA samples from more than 40%
of the entire known population of Rice's whales. They compared these
samples to the DNA of whale species in the Atlantic Ocean and around
the world (Rosel and Wilcox 2014). Results confirmed they were very,
very different from the species that they look most similar to, a
pantropical species called Bryde's whale. In fact, it is so different
that it is just as closely related to the Sei whale, a larger whale
outweighing Rice's whale by about 40%. The Status Review Team asked the
Society of Marine Mammalogy's Taxonomy Committee, which maintains the
official list of marine mammal species, ``Are Bryde's whales in the
Gulf of Mexico likely to belong to at least an undescribed subspecies
of what is currently recognized as Balaenoptera edeni?'' In this
context, `at least' means that the evidence available in 2014 could
mean that these whales were either an undescribed subspecies or a full
species. This independent group of experts in cetacean taxonomy
unanimously answered, `Yes'. Since then, Rosel et al. (2021) published
the full description as a species using both genetic and morphological
data. That Rice's whale is a species has now been fully accepted by the
Society of Marine Mammalogy's Taxonomy Committee.
The five-year study that ran from 2016 to 2021 focused on
determining the extent, and characteristics, of the whale's habitat.
One reason Rice's whale is little known is because it is distributed in
deeper offshore waters, feeding near the bottom during the day and
spending most of its time near the surface to rest at night, when
visibility is low. Rare marine mammals, like vaquitas and Rice's
whales, are difficult to study both because they are rare and because
visual surveys are costly and consequently are done over short time-
periods. Because marine mammals vocalize to find food and each other,
acoustics are a very useful tool for detecting them, and recording
devices can gather data in particular areas for months instead of the
hours or days allowed by large-vessel surveys. Thus, for rare animals,
acoustics offer the best method for recording distribution.
Acoustic studies, published in peer-reviewed scientific journals,
have visually validated and characterized three calls made only by
Rice's whales and no other whale species (Soldevilla et al. 2022a see
also Rice et al. 2014). Five passive acoustic recorders were placed for
a year along the shelf break from Texas to the middle of the known core
habitat (Soldevilla et al. 2022b). The recorder south of Louisiana, the
area with the most historical locations from whaling records, had no
detections. However, the other recorders had detections, with the
westernmost, which was south of Texas, recording Rice's whales multiple
days in every season throughout the year. But the calls differ from
those made in the eastern portion of the species' range. Such different
calls are not consistent with vagrant whales from the east wandering
into western waters. More data often improve management as knowledge
gaps are filled. This is just such a case and while additional work may
expand the known area of Rice's whale distribution, such data will not
contradict the work that has been published by some of the marine
mammal field's best acousticians.
Research has also shown the whales' primary prey is distributed
throughout the northern Gulf (Kiszka et al. 2023). Rice's whale is a
selective predator, focused on aggregations of certain high-energy
content fish--primarily a schooling fish known as Ariomma bondi. Both
historical catch records and near-bottom trawling data shows A. bondi
favoring the same shelf-break habitat throughout the northern Gulf of
Mexico where the whales have been shown to persistently occur.
There is no scientific reason to delay conservation actions because
more data are needed to delineate Rice's whale distribution.
As I have stated, our Status Review of the species identified and
assessed potential threats to the whale and concluded that some threats
were serious or of high severity. Vessel collisions, a threat for many
large whales that use habitat in high shipping areas, represent one
such threat. Evidence from tags show that the whales spend 85 to 88
percent of the time at night, when they are largely resting, and about
70 percent of the time overall, close to the surface, leaving them
highly vulnerable to vessel strikes (Soldevilla et al. 2017, Kok et al.
2023). In 2009, a lactating female Rice's whale was killed by ship
strike, and photo-identification efforts have documented one other
Rice's whale with severe disfigurement to the tail stock, likely the
result of a vessel strike (Rosel et al. 2021). The northern Gulf of
Mexico experiences considerable vessel traffic, particularly in the
north-central and western regions where oil and gas exploration and
development are concentrated (Rosel et al. 2016). NMFS' 2020 analysis,
set forth in its Biological Opinion on oil and gas activities, found
that the industry accounted for about 34% of strike risk from all
vessels and about 23.5% of strike risk from vessels traveling at speeds
greater than 10 knots. An analysis updating NMFS' calculations with the
new density estimates for Rice's whale (Litz et al. 2022) found the
industry's contribution to be about 39.5% from all vessels and 32% from
vessels traveling at speeds greater than 10 knots (Best et al.
unpublished).
I was one of four NOAA scientists given the agency's Gold Medal for
designing the management scheme for the number of animals that could
incidentally be killed by human activities each year and still meet
management objectives. This management was part of the Marine Mammal
Protection Act's (MMPA) 1994 amendments. The current allowable kill for
Rice's whale is 0.07 whales per year, or 1 whale every 14 years. There
has been 1 documented death due to ship-strike in the last 14 years.
However, it has been estimated that only a small percentage of dead
whales are found, so it is likely that ship-strikes alone are more than
would be allowed under the MMPA as human-caused mortality. Williams et
al. (2011) estimated that only 3.4% of dead sperm whales in the Gulf of
Mexico are found as carcasses. This number should be similar to the
similarly large and offshore Rice's whale.
In addition to industrial activities posing ship-strike threats to
Rice's whales in the central and western Gulf, industrial operations
input noise into the whale's habitat. Noise was also characterized by
the five acoustic recorders previously mentioned and was found to be
higher in the central and western Gulf locations, where Rice's whale
are currently found at lower densities, than in the quieter eastern
core habitat (Soldevilla et al. 2022b). Sound is a fundamental sense
used by whales to survive. Whales find their food and each other
acoustically. Chronic noise is a serious detriment to Rice's whales'
ability to thrive and recover.
A large proportion of the remaining Rice's whales were estimated to
have been affected by the Deepwater Horizon oil spill and clean up \1\
(Deepwater Horizon Damage Assessment Trustees 2016). Many smaller oil
spills have occurred since, and spills remain a threat. To save Rice's
whale from extinction, defining critical habitat and maintaining areas
where spill threats are minimized is critical. Delaying consideration
of Rice's whales' safety by delaying `implementation of certain
documents' specified in this bill increases the risk of extinction for
the species.
---------------------------------------------------------------------------
\1\ Deepwater Horizon Marine Mammal Injury Quantification Team (DWH
MMIQT), Models and analysis for the quantification of injury to Gulf of
Mexico cetaceans from the Deepwater Horizon oil spill (2015).
---------------------------------------------------------------------------
The proposed bill, in requiring additional studies and assessments,
goes far beyond the accepted process of scientific peer review, and
would significantly delay any new measures to address these threats. As
mentioned previously, gathering evidence on extremely rare species is a
time-consuming process. Time the species may not have.
For vaquita porpoises I am often asked whether they are doomed to
extinction because the low numbers will inevitably result in inbreeding
depression and drive the species extinct. The Status Review rated
genetic risks as severe because Rice's whales, like vaquitas, have low
genetic diversity. One reason scientists worry about the genetic risks
for small populations is inbreeding depression, which is reduced birth
rates or increased death rates resulting from close relatives mating
and exposing double doses of bad genes. We recently published a paper
showing vaquitas to be less vulnerable to such problems because of
their natural rarity than naturally abundant species because they had
at least 200,000 years to purge their bad genes (Robinson et al. 2022).
It is possible that Rice's whale will have a similar pattern. But even
if they don't, there are many species that have recovered from very low
numbers. For example, Northern elephant seals were thought to have
fallen to as few as 30 individuals from many years of hunting. A small
island population off Mexico has grown and recolonized the historical
range and now numbers well over 150,000 individuals. Despite the
slaughter of millions of large whales, there is no similar recovery
event to tell us about their genetic resilience, since no species has
declined to only 50 individuals, as is the case for Rice's whale. But
other baleen whale species, such as Southern right whales and humpback
whales, have bounded back from population numbers decimated by hunting.
Fortunately, like vaquitas, Rice's whales continue to reproduce.
The Endangered Species Act (ESA) notes that wildlife ``are of
esthetic, ecological, educational, historical, recreational and
scientific value to the Nation and its people''. The extirpation of
many species of large whales inspired both the ESA and the MMPA. It is
both a privilege and a burden to host the only large whale species
found, as far as is known, within the waters of a single nation. It is
a privilege because the Gulf of Mexico must be a very special place to
have its very own large whale species. It is a burden because such a
species is naturally vulnerable and requires special protections. Now
that the species numbers only around 50 individuals, those protections
must be prompt and adequate to avoid the fate of the Yangtze river
dolphin and the likely fate of vaquitas. Neither China nor Mexico have
the strong environmental legislation and rule of law that the U.S. has
been a world leader in implementing.
Thank you for this opportunity to testify.
References
Best, B. 2023. Spatial analysis of ship strike risk for Rice's whale in
the Gulf of Mexico. Unpublished Report
Deepwater Horizon Damage Assessment Trustees. 2016. Deepwater Horizon
Oil Spill: Final Programmatic Damage Assessment and Restoration Plan
and Final Programmatic Environmental Impact Statement
Garrison, L.P., Ortega-Ortiz, J. & Rappucci, G. 2020. Abundance of
marine mammals in waters of the U.S. Gulf of Mexico during the summers
of 2017 and 2018. 2020. National Marine Fisheries Service, Southeast
Fisheries Science Center, Miami, FL. PRD Contribution: #PRD-2020-07.
https://doi.org/10.25923/3px6-9v48.
Jaramillo-Legorreta, A., L. Rojas-Bracho, R.L. Brownell, A.J. Read,
R.R. Reeves, K. Ralls, and B.L. Taylor. 2007. Saving the vaquita:
immediate action, not more data. Conservation Biology 21: 1653-1655.
Kiszka, JJ, Caputa, M, Vollenweider, J, Heithaus, MR, Dias, LA,
Garrison, LP (2023) Critically endangered Rice's whales (Balaenoptera
ricei) selectively feed on high-quality prey in the Gulf of Mexico.
Scientific Reports 13:6710
Kok, ACM, Hildebrand MJ, MacArdle M, Martinez A, Garrison LP,
Soldevilla MS, Hildebrand, JA (2023) Kinematics and energetics of
foraging behavior in Rice's whales of the Gulf of Mexico. Scientific
Reports 13:8996
Litz, J, L Aichinger Dias, G Rappucci, A Martinez, M Soldevilla, L
Garrison, and K Mullin. 2022. ``Cetacean and Sea Turtle Spatial Density
Model Outputs from Visual Observations Using Line-Transect Survey
Methods Aboard NOAA Vessel and Aircraft Platforms in the Gulf of
Mexico.''
Robinson, J.A., Kyriazis, C.C., Nigenda-Morales, S.F. Beichman, A.C.,
Rojas-Bracho, L., Robertson, K.M., Fontaine, M.C., Wayne, R.K.,
Lohmueller, K.E., Taylor, B.L., Morin P.A. 2022. The critically
endangered vaquita is not doomed to extinction by inbreeding
depression. Science 376: 635-639
Reeves RR, Lund JN, Smith TD, Josephson EA (2011) Insights from whaling
logbooks on whales, dolphins, and whaling in the Gulf of Mexico. Gulf
of Mexico Science 29:41-67
Rice, A.N., Palmer, K.J., Tielens, J.T., Muirhead, C.A., and Clark,
C.W. (2014). ``Potential Bryde's whale (Balaenoptera edeni) calls
recorded in the northern Gulf of Mexico,'' J. Acoust. Soc. Am.
135,3066-3076.
Rosel PE, Wilcox LA (2014) Genetic evidence reveals a unique lineage of
Bryde's whales in the northern Gulf of Mexico. Endangered Species
Research 25:19-34
Rosel, P.E., P. Corkeron, L. Engleby, D. Epperson, K.D. Mullin, M.S.
Soldevilla, B.L. Taylor. 2016. Status Review of Bryde's Whales
(Balaenoptera edeni) in the Gulf of Mexico under the Endangered Species
Act. NOAA Technical Memorandum NMFS-SEFSC-692
Rosel PE, Wilcox LA, Yamada TK, Mullin KD (2021) A new species of
baleen whale (Balaenoptera) from the Gulf of Mexico, with a review of
its geographic distribution. Marine Mammal Science 37: 577-610
Soldevilla MS, Hildebrand JA, Frasier KE, Aichinger Dias L and others
(2017) Spatial distribution and dive behavior of Gulf of Mexico Bryde's
whales: potential risk of vessel strikes and fisheries interactions.
Endangered Species Research 32: 533-550
Soldevilla MS, Ternus K, Cook A, Hildebrand JA, Frasier KE, Martinez A,
Garrison LP (2022a) Acoustic localization, validation, and
characterization of Rice's whale calls. Journal of the Acoustical
Society of America 151:4264-4278
Soldevilla MS, Debich AJ, Garrison LP, Hildebrand JA, Wiggins SM,
(2022b) Rice's whales in the northwestern Gulf of Mexico: call
variation and occurrence beyond the known core habitat. Endangered
Species Research 48:155-174
Williams, R., Gero, S., Bejder, L., Calambokidis, J., Kraus, S.D.,
Lusseau, D., Read, A.J. and Robbins, J. (2011), Underestimating the
damage: interpreting cetacean carcass recoveries in the context of the
Deepwater Horizon/BP incident. Conservation Letters, 4: 228-233.
https://doi.org/10.1111/j.1755-263X.2011.00168.x
______
Questions Submitted for the Record to Dr. Barbara Taylor, International
Union for the Conservation of Nature (IUCN)
Questions Submitted by Representative Huffman
Question 1. Could you explain what the lack of Rice's whale calls
at the GI recorder South of Louisiana could mean for the species
distribution?
Answer. A lack of Rice's whale calls at the GI recorder is not a
significant factor in the determination of the distribution of the
whale in the Gulf of Mexico. The more important factor is that
thousands of recordings of call from Rice's whales were gathered at the
western-most recorders.
First, the lack of calls at the GI recorder is not evidence that
Rice's whales do not move between where whales were detected in the
west, south of western Louisiana and Texas, and the De Soto Canyon
habitat in the east. The acoustic data indicate that calls most common
in the west are occasionally detected in the east on about 6% of the
days, which is consistent with some movement between those areas.
However, Soldevilla et al. (2022b) state that ``given the current data,
it remains unknown whether animals are moving between the northwestern
and northeastern sites or whether these represent different groups of
animals.''
Second, the physical location of this particular recorder could be
a factor in the lack of recorded calls. The GI recorder is set within a
canyon indented from the general shelf break running along the northern
Gulf. The distance a whale's call could be heard is unknown, both
because of potential sound shadows from the canyon itself and because
of relatively high shipping noise in the location of that hydrophone,
which could mask the whale's low-frequency calls. Indeed, Soldevilla et
al. (2022b) state that higher levels of ambient noise in the western
Gulf is likely to significantly reduce the range over which calls are
detectable. Because whales' calls are made to facilitate feeding or to
communicate, they may call infrequently or not at all it they are
transiting from one area of good habitat to another. So, an absence of
detected calls at the GI location, while it is difficult to interpret,
should not be construed to mean that the whales are not present there.
Finally, and importantly, the presence of calls off western
Louisiana and Texas, as well as in the eastern Gulf, is clear evidence
that Rice's whales are utilizing these areas. Nearly 2,000 calls were
detected at the western-most recorder. Those results are conclusive
proof that Rice's whales were present there in every season. In fact,
such a high frequency in the number of calls in that western location
is clear evidence that De Soto Canyon is not the sole habitat for
Rice's whale. In short, the many calls accumulated on that western-most
recorder establish that this whale occupies an area extending westward
from that Canyon. The lack of recorded calls at the GI recorder does
nothing to change that fact. That clear and direct evidence is further
supported by studies of the whales' prey, which indicate that their
primary prey species is found along the continental shelf break across
the northern Gulf (Kiszka et al. 2023).
Questions Submitted by Representative Dingell
Question 1. Dr. Taylor, the oil and gas industry has claimed that
there's little scientific evidence to suggest the whale's habitat
extends into the central and western Gulf of Mexico, where the industry
mainly operates. And it has attacked peer-reviewed scientific studies
that claim otherwise. As someone with decades of experience in marine
mammal biology, do you agree with the industry's characterization of
the existing evidence?
Answer. The industry characterization of the evidence regarding the
critically endangered Rice's whale is both unsupported and
fundamentally wrong for many reasons. I completely disagree with the
characterization offered by those speaking for the industry. That
characterization ignores robust, peer-reviewed evidence showing that
the whale occupies areas west of De Soto Canyon. Moreover, it provides
a misleading picture of the status of Rice's whale that would lead to
very dangerous delays in vital efforts to protect the whale from
extinction.
1,276 days of acoustic data from the western and central areas of
the northern Gulf of Mexico have been analyzed and published in a peer-
reviewed journals (Soldevilla et al. 2022a, 2022b) by scientists
recognized in the marine mammal field as leading experts in whale
acoustics. Peer-review is the accepted way to screen out scientific
findings that are not sound. If scientists find fault with published
findings it is incumbent upon them to publish the reason they find the
science unsound in the peer-reviewed literature. To date, no scientist
has found fault with the published findings.
These data (analyzed in the peer-reviewed paper by Soldevilla et
al. 2022b) indicate persistent presence of Rice's whales in both the
western and central Gulf, with higher presence in the westernmost
recorder. For rare marine mammals, particularly those found far from
easily accessed coastal waters, acoustic recordings offer the best
method to characterize habitat usage because a large amount of data can
be amassed in a relatively short period of time. Acoustic monitoring
can occur 24-hours-per-day, regardless of weather, across weeks, months
and seasons. In contrast, visual ship surveys are only within areas
where the whales occur for a few days. Therefore, the information
presented and analyzed in the Soldevilla paper is the best available
science on the question whether Rice's whales are found west of DeSoto
Canyon--and it demonstrates conclusively that the whales do inhabit
that area.
The industry testimony with respect to Rice's whales not only
largely ignores this key evidence, it also introduces unsupported
excuses for delaying efforts to protect the whale population. Testimony
by Alexandria Loureiro on behalf of the EnerGeo Alliance states that
``there is no evidence that the population is declining, nor that
animals are vulnerable to an acute anthropogenic threat.'' As a
scientist with over 30 years of experience in estimating trends in
abundance for marine mammals, I can attest that requiring evidence of
decline is inappropriate for a critically endangered species. In 2007,
I was lead-author on a study calculating the statistical likelihood of
detecting a precipitous decline in various marine mammal populations
off the United States, given the frequency and precision of monitoring
efforts (Taylor et al. 2006). Given the whale's very small abundance
and the precision of current estimates, it would take no less than 45
years of annual surveys to determine? with high confidence typically
demanded in scientific studies that the species is declining at 2%-per-
year (one anthropogenic death annually). And why, with 50 individuals
remaining would such a delay be justified? Clearly, this kind of delay
cannot be justified; these whales are running out of time.
Ms. Loureiro also expresses some skepticism over the threat
presented to Rice's whales from ship strikes. But there is sufficient
evidence to strongly infer that ship-strikes are an acute anthropogenic
threat to these whales. It is clear from tagging data (Soldevilla et
al. 2017, Kok et al. 2023) that the whales spend most of their lives in
waters shallow enough to be hit by ships; and ship traffic within their
habitat is high enough to result in deaths that the population cannot
sustain. Indeed, one whale death has been attributed to vessel strike,
and another whale has severe deformation of the dorsal fin strongly
indicative of vessel strike--a record that almost certainly
underestimates the actual number of strikes, since the majority of
mortalities of cetacean species go undetected and unreported. If Ms.
Loureiro finds specific fault with the models used by NOAA and others
to estimate ship-strike mortality, then such faults should be noted and
discussed.
Loureiro also presents misleading testimony by stating that
``Rice's whale detections are quite rare'' and then proceeding to
present Rice's whale sightings, but not Rice's whale acoustic
detections. This is an effort to distract members of the subcommittee
by diverting their attention away from a key piece of evidence: the
nearly 2,000 acoustic Rice's whale calls detected on the westernmost
recorder cannot be categorized as `rare'. She further claims that
relying on a single study (Soldevilla et al. 2022b) is unscientific,
without providing any explanation as to why a peer-reviewed scientific
paper including 1,602 days of data should not be relied upon as the
best available scientific data. Instead, she states, without supporting
justification, that protecting the central and western areas between
100 and 400m depths would `provide no tangible benefit to the species'.
At the same time, she strongly supports requiring a study (which the
Graves bill does not fund) conducted by the National Academies of
Science Engineering and Medicine (who lack expertise in marine
mammalogy) to determine the occurrence of Rice's whales, without
specifying why the published and ongoing studies are in any way
inadequate.
Question 2. Dr. Taylor, it was incredibly powerful to hear you
mention your direct experience with extinction and endangered animals.
If you could do something for the Rice's whale tomorrow, what would it
be? And what does Congress need to do to prevent the extinction of this
species?
Answer. The greatest immediate threat to Rice's whales given the
best available science is ship-strike. A great deal of research has
shown that reducing the speed of ships reduces the probability of
lethal ship strikes of baleen whales. Rice's whales have been
documented to utilize shelf-break waters from 100-400m, so the most
efficient means to reduce Rice's whale deaths is to slow ships
transiting through those waters.
Prompt actions are needed to prevent extinction. From the whale's
point of view, little has changed to reduce threats since the species
suffered an estimated population decline of 22% in the Deepwater
Horizon Oil Spill. In fact, in the intervening years since that spill
there have been more documented human-caused mortalities. Small
populations are vulnerable to what conservation biologists call `the
extinction vortex' where risks feed back upon each other, causing the
species to decline faster and faster. For example, because of high
levels of ambient noise in their habitat, whales may not be able to
find each other to mate, leading to lower birth rates which leads to
fewer whales in the breeding pool which can lead to inbreeding
depression and so forth. The most important action in an emergency room
with a bleeding patient is to stop the bleeding. Similarly, the most
important action for a critically endangered species is to stop the
threat that is known to cause deaths, in this case reducing deaths by
ship-strike.
There are other actions that could be taken, particularly as
research continues to add evidence about the lives of these last
whales. Acquiring data rapidly takes adequate funding. Congress can
definitely help save this special large whale species living in our
waters by funding more research to better understand its needs and
threats and improve future conservation actions. However, research
should not be used as an excuse to delay actions. Delay increases
threats to the species by allowing the worst thing that could be done
for Rice's whale, and that is doing nothing.
References
Kiszka, JJ, Caputa, M, Vollenweider, J, et al (2023) Critically
endangered Rice's whales (Balaenoptera ricei) selectively feed on high-
quality prey in the Gulf of Mexico. Scientific Reports 13:6710
Kok, ACM, Hildebrand MJ, MacArdle M, et al (2023) Kinematics and
energetics of foraging behavior in Rice's whales of the Gulf of Mexico.
Scientific Reports 13:8996
Soldevilla MS, Hildebrand JA, Frasier KE, et al (2017) Spatial
distribution and dive behavior of Gulf of Mexico Bryde's whales:
potential risk of vessel strikes and fisheries interactions. Endangered
Species Research 32:533-550
Soldevilla MS, Ternus K, Cook A, et al (2022a) Acoustic localization,
validation, and characterization of Rice's whale calls. Journal of the
Acoustical Society of America 151:4264-4278
Soldevilla MS, Debich AJ, Garrison LP, et al (2022b) Rice's whales in
the northwestern Gulf of Mexico: call variation and occurrence beyond
the known core habitat. Endangered Species Research 48:155-174
Taylor, BL, Martinez, M, Gerrodette, T, Barlow J (2006) Lessons from
monitoring trends in abundance of marine mammals. Marine Mammal Science
23:157-175.
______
Mr. Bentz. Thank you, Dr. Taylor.
The Chair now recognizes Mr. Steven Roady, Senior Lecturing
Fellow, Professor of the Practice, Duke University in
Washington, DC.
Mr. Roady, you are recognized for 5 minutes.
STATEMENT OF STEPHEN ROADY, SENIOR LECTURING FELLOW, DUKE
UNIVERSITY SCHOOL OF LAW, PROFESSOR OF THE PRACTICE, DUKE
SCHOOL OF THE ENVIRONMENT, WASHINGTON, DC
Mr. Roady. Good afternoon, Chairman Bentz, Ranking Member
Huffman, and members of the Subcommittee. Thank you very much
for this opportunity to testify today as you consider several
bills that relate to the Endangered Species Act.
I currently teach at Duke University, but for 40 years
prior to that I was practicing environmental law in Washington,
DC, environmental law and policy. A number of my cases involved
endangered species, and I feel as if I have fairly good
knowledge of how the Act is supposed to work.
The three bills in front of us today, as Ranking Member
Huffman has already pointed out, are completely antithetical to
the purposes of the Endangered Species Act.
The Act was passed with strong bipartisan support in 1973.
Its central purpose is to preserve and protect ecosystems and
to prevent and halt extinction of species. It has been wildly
successful over the years.
There was a very famous case decided in 1978 by the U.S.
Supreme Court, Tennessee Valley Authority v. Hill, in which the
court said that the Act was clear that the species would be
given the highest priority for protection. In that case, in
fact, the Court ruled that a dam that was about 80 percent
complete could not be completed because completion of the dam
would risk rendering extinct a small fish behind the dam. Ever
since that ruling in the Supreme Court case, the policy of this
country has been to protect species from being endangered and
to reverse extinction risks. The three bills in front of us
today run counter to this trend. I will just take them in
order.
H.R. 520 is the one that would basically, as Ranking Member
Huffman has already explained, force the government to treat
artificially propagated species as if they are natural species
in the wild. This completely ignores the central purpose of the
Act to protect ecosystems and species in the wild. The fact of
the matter is nature is not a zoo. Just counting tigers in the
zoo doesn't mean you have saved the tiger from extinction. So,
it is a really dangerous thing to do, to do what H.R. 520 would
do.
H.R. 5004 would basically halt the current Administration
from putting back in place rules that were basically designed
to further the purpose of the Act in several ways. Those rules
made it clear that you could not consider economic factors when
you were initially listing a species as being threatened or
endangered. The Trump administration removed that provision.
The rules would also make it clear that once a species is
listed as threatened, you would automatically kick in some
protections for that species. The Trump administration removed
those. These are the kinds of things that the current
Administration is trying to put back into place. And,
therefore, H.R. 5504 goes in the wrong direction.
And then, turning finally to H.R. 6008, Representative
Graves' bill, it would be harder to conceive of a piece of
legislation that would be more centrally destructive of the
purpose of the Endangered Species Act to prevent extinction. As
Dr. Taylor has just pointed out, we are looking at a whale
species in the Gulf of Mexico that is down to about 50
individuals. This species is so critically endangered that the
government has testified the loss of even one reproductively
active female whale could render the species extinct.
There really is no room for error on this whale, and yet
the bill sponsored by Representative Graves basically would put
a halt on all efforts to protect the whale. It would basically
stop the government from going back to use brand-new science
that has come into the arena in the 4 or 5 years since the BP
Horizon disaster, which shows that the whales now exist in
large numbers west of the DeSoto Canyon. It would prevent the
government from going forward with a biological opinion until
there is a totally unfunded study conducted by the National
Academies of Science, which could take a number of years. As
Representative Huffman has pointed out, it would give industry
a seat at the table in these negotiations over the biological
opinion.
It is really the wrong way to go. It runs counter to the
purposes of the Endangered Species Act, and it really should
not be approved. In fact, none of these bills, in my view,
merit the approval from this Subcommittee, as they all run
counter to the Endangered Species Act.
Thank you again for the opportunity to testify, and I would
be glad to respond to any questions.
[The prepared statement of Mr. Roady follows:]
Prepared Statement of Stephen Roady, Senior Lecturer, Duke University
School of Law; Professor of the Practice, Duke School of the
Environment
on H.R. 520, H.R. 5504. and H.R. 6008
Good afternoon, Chairman Bentz, Ranking Member Huffman, and Members
of the Subcommittee. Thank you for inviting me to this legislative
hearing today as you consider several bills relating to the Endangered
Species Act.
My name is Stephen Roady. I teach at Duke University, both in the
Law School and at the School of the Environment. My courses include
classes on ocean and coastal law and policy, and on environmental law
and litigation. Prior to joining the Duke faculty, I practiced
environmental law for 40 years here in Washington, and also engaged in
ocean policy work. My law and policy practice included a number of
cases that involved species protected by the Endangered Species Act,
such as whales and sea turtles. I am appearing today in my individual
capacity, and am not speaking on behalf of Duke University.
Introduction
As requested in your invitation, I will focus on three of the bills
under consideration today by the Subcommittee: H.R. 520, H.R. 5504, and
H.R. 6008.
My testimony today emphasizes the vital importance of the
Endangered Species Act, particularly at this time when we are facing a
biodiversity crisis, and highlights ways in which these bills are
inconsistent with the central purposes of that Act.
I will begin with a review of the origins and purposes of the
Endangered Species Act (ESA or Act). Next, I will highlight the
importance of current efforts by the federal government to revise
regulations that implement the Act. Finally, after touching on the
reasons for ensuring that wild populations should be protected in their
natural habitat, I will address the problems and risks associated with
H.R. 6008, especially as they relate to the possibility of extinction
for a species of large whale in the Gulf of Mexico known as Rice's
whale.
1. Importance and Success of the Endangered Species Act
Congress passed the Endangered Species Act with overwhelming
bipartisan support in 1973 in response to a growing awareness of
extinction threats facing many species. The Act was the product of a
collaboration between a Democrat, John Dingell of Michigan, and a
Republican, Pete McCloskey of California, and it originated in the
precursor to this very subcommittee.
The Act is designed to ``provide a means whereby the ecosystems
upon which endangered species and threatened species depend may be
conserved, [and] to provide a program for the conservation of such
endangered species and threatened species . . . .'' \1\ The Act has two
central purposes: (1) to prevent species from extinction, and (2) to
recover their populations to healthy levels in their natural habitats.
---------------------------------------------------------------------------
\1\ 16 U.S.C. Sec. 1531(b).
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The Act seeks to protect and recover imperiled species in a
straightforward manner. First, it provides for a process that lists
species in need of protection. Second, it prohibits both individuals
and federal agencies from taking actions that harm listed species.
Under the Act, species can be listed as threatened or endangered
based on five statutory factors. These factors include destruction of
species habitat or range, as well as man-made factors affecting the
continued existence of the species. The Act explicitly states that
listing decisions are to be made ``solely on the basis of the best
scientific and commercial data available.'' \2\ Thus, economic factors
are not allowed to be considered when deciding whether to list a
species as protected under the Act.
---------------------------------------------------------------------------
\2\ 16 U.S.C. Sec. 1533(b)(1)(A).
---------------------------------------------------------------------------
The ESA defines an endangered species as ``any species which is in
danger of extinction throughout all or a significant portion of its
range.'' \3\ A threatened species is defined as ``any species which is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range.'' \4\ At the time
that a species is listed as threatened or endangered, the U.S. Fish and
Wildlife Service or the National Marine Fisheries Service (the two
agencies charged with administering the Act) must consider the
designation and protection of critical habitat for the species, defined
as areas that are essential for the survival and recovery of the
species.\5\
---------------------------------------------------------------------------
\3\ 16 U.S.C. Sec. 1532(6).
\4\ 16 U.S.C. Sec. 1532(20).
\5\ 16 U.S.C. Sec. 1532(5)(a).
---------------------------------------------------------------------------
The principal operating architecture of the Act is contained in
Sections 4, 7, and 9. Section 4 sets out the process by which a species
can become listed, and its habitat protected as ``critical.'' As part
of that process, subsection 4(d) requires the government to establish
regulations to conserve threatened species, including by prohibiting
``take'' of that species.\6\ Section 7 prohibits federal agencies from
jeopardizing the existence of listed species, and also from adversely
modifying critical habitat of those species.\7\ Section 9 prohibits any
person from ``taking'' any endangered species.\8\ The Act defines the
term ``take'' broadly, as follows: ``harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct.'' \9\
---------------------------------------------------------------------------
\6\ 16 U.S.C. Sec. 1533, 1533(d).
\7\ 16 U.S.C. Sec. 1536(a)(2).
\8\ 16 U.S.C. Sec. 1538(a)(1).
\9\ 16 U.S.C. Sec. 1532(19).
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The Supreme Court emphasized 45 years ago that the clear intention
of Congress in enacting the ESA ``was to halt and reverse the trend
toward species extinction, whatever the cost.'' \10\ In the famous case
of Tennessee Valley Authority v. Hill, the Court noted that this
central purpose ``is reflected not only in the stated policies of the
ESA, but in literally every section of the statute.'' \11\
---------------------------------------------------------------------------
\10\ Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 (1978).
\11\ Id. at 180.
---------------------------------------------------------------------------
The Endangered Species Act has proved to be a bulwark against the
erosion of biodiversity in this country. Since its passage, the Act has
prevented the extinction of 99 percent of the species under its care,
including the gray whale, the California condor, the Florida manatee,
and our nation's symbol, the bald eagle. Not only is the ESA highly
effective, but it is also wildly popular, with 90 percent of Americans
supporting the Act.\12\
---------------------------------------------------------------------------
\12\ Tulchin Research, ``Poll Finds Overwhelming, Broad-Based
Support for the Endangered Species Act Among Voters nationwide,'' July
6, 2015: http://www.defenders.org/publications/Defenders-of-Wildlife-
National-ESA-Survey.pdf.
---------------------------------------------------------------------------
The importance of the ESA has never been more evident. Scientists
agree that we are in the midst of an unprecedented biodiversity crisis:
worldwide, we are losing species at a rate unparalleled in human
history.\13\ A recent comprehensive report from the United Nations
Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem
Services concludes that nature is in a dangerous decline, with species
extinction rates accelerating.\14\ This crisis threatens the ecosystems
upon which we all depend, and has the potential to threaten not only
our environment, but also public health.\15\
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\13\ Gerardo Caballos, Paul R. Ehrlich, Rodolfo Dirzo, ``Biological
annihilation via the ongoing sixth mass extinction signaled by
vertebrate population losses and declines,'' PNAS, July 10, 2017:
https://www.pnas.org/doi/full/10.1073/pnas.1704949114.
\14\ UN Report: Nature's Dangerous Decline `Unprecedented'; Species
Extinction Rates `Accelerating': https://www.un.org/
sustainabledevelopment/blog/2019/05/nature-decline-unprecedented-
report/
\15\ Dirk Schmeller, Frank Courchamp, and Gerry Killeen,
``Biodoversity loss, emerging pathogens, and human health risk,'' 29
Biodiversity and Conservation 3095-3102 (2020): https://
link.springer.com/article/10.1007/s10531-020-02021-6.
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Under these circumstances, it is surpassingly important that we
ensure this country continues to carry through with the central
intention of the Act: to halt and reverse the trend toward species
extinction. Unfortunately, the three bills before the Subcommittee
today do just the opposite.
2. Observations on H.R. 5504
In the midst of the current biodiversity crisis, we should be
working to strengthen, not weaken, the Endangered Species Act, which is
our nation's best hope for helping to prevent extinction. This is what
the current Administration is doing; it has proposed rules that would
help ensure that the purposes of the Act are implemented in a manner
faithful to the purposes and language of the Act. By contrast, H.R.
5504 would suspend that rulemaking effort, and would instead leave in
place regulations that weaken the Act.
The previous Administration took a major step in the wrong
direction by adopting several regulatory revision packages that violate
the ESA, weaken its implementation, and undermine its purpose of
conserving imperiled species and the ecosystems upon which they
depend.\16\ Briefly stated, these revisions: (1) allowed the
consideration of economic factors as part of the decision to list
species as threatened or endangered, (2) eliminated automatic
protections from harm for any species listed as threatened, (3) allowed
consulting agencies to rely on an action agency's claim that it will
mitigate any incidental harm to affected species without requiring any
demonstration of specific binding mitigation plans, and (4) allowed
agencies to consider whether modifications or destruction of critical
habitat are significant when compared to the value of that habitat ``as
a whole.'' Each of these revisions undermines the purposes and efficacy
of the Act.
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\16\ Endangered and Threatened Wildlife and Plants; Regulations for
Prohibitions to Threatened Wildlife and Plants, 84 Fed. Reg.44753
(August 27, 2019) (to be codified at 50 C.F.R. pt. 17); Endangered and
Threatened Wildlife and Plants; Regulations for Interagency
Cooperation, 84 Fed. Reg. 44976 (August 27, 2019) (to be codified at 50
C.F.R. pt. 402); Endangered and Threatened Wildlife and Plants;
Regulations for Listing Species and Designating Critical Habitat, 84
Fed. Reg. 45020 (August 27, 2019) (to be codified at 50 C.F.R. pt.
424).
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The rules proposed by the current Administration would correct
those illegal regulatory revisions. They are designed to return to the
original intention of the Act. Among other things, the proposed rules
would reinstate prior language affirming that listing determinations
are made without reference to possible economic impacts.\17\ In
addition, the proposed rules would reinstate the government's practice
of automatically extending the protections of Section 9 (prohibiting
``take'') to species listed as threatened.\18\
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\17\ 88 Fed. Reg. 40764 (June 22, 2023).
\18\ 88 Fed. Reg. 49742 (June 22, 2023).
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Numerous parties have filed comments on these proposed rules, and
the government is now reviewing those comments. Given the fundamental
importance of protecting against the biodiversity crisis, the process
should be allowed to proceed so that the government can decide on its
final proposals in light of all relevant information generated in the
comment process. But H.R. 5504 would shut down this process. Therefore,
H.R. 5504 should not be approved.
3. Observations on H.R. 520
Like H.R. 5504, the provisions of H.R. 520 would weaken the
Endangered Species Act. This bill would allow the government to rely
upon artificially-propagated species to substitute for the loss of wild
species. In addition, it would require the government to make no
distinction between artificially-propagated species and natural species
in making determinations under the Act. If enacted, this bill would
erode--rather than enhance--protections for threatened and endangered
species.
In particular, H.R. 520 would risk taking the focus away from a
fundamental purpose of the ESA: ensuring that species thrive over the
long term by protecting the ecosystems on which they depend, and to
which they contribute. Salmon on the West coast are the perfect example
of why it simply does not work to protect species as somehow separate
from their habitats. Salmon born in mountain streams and creeks are a
source of food for countless other species as they migrate to the
ocean, where they are both predator and prey for carefully balanced
marine ecosystems. The adult salmon that return to these streams to
spawn the next generation, and then die, bring vital marine-derived
nitrogen deep into inland landscapes, such that forests as far inland
as central Idaho have evolved to depend on the annual boost of nitrogen
from spawning salmon.
In short, H.R. 520 would destroy one of the central pillars of the
Endangered Species Act. For this reason alone, H.R. 520 should not be
approved.
4. Observations on H.R. 6008
H.R. 6008 is a particularly problematic example of an effort to
undermine the Endangered Species Act. If approved, it would delay
protections for the critically endangered Rice's whale, increasing the
already-considerable risk that the whale would become extinct. Nothing
could be more antithetical to the purposes and the plain language of
the Act.
H.R. 6008 is being proposed after a long effort by a number of
parties to protect the endangered Rice's whale from the effects of oil
and gas activities in the Gulf of Mexico. The best available scientific
evidence demonstrates that Rice's whale lives only in the Gulf, that
only about 50 individual whales remain alive, and that the species is
facing the possibility of extinction as a result of oil pollution, ship
strikes, and noise.\19\ Under these circumstances, immediate actions
are needed to preserve both these whales and their habitat.
Regrettably, H.R. 6008 would prevent such action, and would instead
postpone efforts to protect this whale from harm. Delay of the kind
promoted by H.R. 6008 poses great risk to the very survival of Rice's
whale.
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\19\ 84 Fed. Reg. 15,466 (Apr. 15, 2019) (listing primarily because
of ``its small population size and restricted range'' and harm from
``energy exploration, development and production, oil spills and oil
spill response, [and] vessel collision.'')
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The best science starkly demonstrates how closely Rice's whale is
hovering near extinction. The condition of the whale is so acute that
the National Marine Fisheries Service has concluded that ``the loss of
even a single reproductive female could lead this species to
extinction.'' \20\ The seriousness of the imminent peril facing this
whale was underscored further in an October 2022 letter, signed by more
than 100 marine science experts from across the country, which notified
the federal government that the whale urgently needed protection from
oil and gas activities in the Gulf in order to avoid extinction.\21\
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\20\ Comments of Andrew J. Strelcheck, NMFS Regional Administrator
for the Southeast Regional Office, to Tershara Matthews, Chief of
Emerging Programs, BOEM, on Draft Environmental Assessment for
commercial leasing wind power development on the Outer Continental
Shelf in the Gulf of Mexico 6 (Feb. 9, 2022).
\21\ P. Corkeron et al., An Open Letter to the Biden
Administration, Oct. 12, 2022 (statement of approximately 100 marine
Scientists), available at https://www.neaq.org/wp-content/uploads/2023/
06/Scientist-statement.-GoM-whale.-Oct.-2022.pdf
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Rice's whale is the only great whale species resident year-round in
U.S. waters. It is acutely vulnerable to vessel strikes, as it spends
the majority of its time near the ocean surface--about 90% of the time
at night, when the whales come to the surface to rest, and 70% of the
time overall.\22\ Their behavior therefore places them at significant
risk of being struck by large commercial vessels. In a 2020 Biological
Opinion, the National Oceanic and Atmospheric Administration (NOAA)
found that mortalities from vessel strikes are likely to exceed--by
more than ten times--what the species can sustain.23,24
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\22\ Biological Opinion on the federally Regulated Oil and Gas
Program Activities in the Gulf of Mexico (Mar. 2020) at 347
\23\ Id. at 363 (concluding that even with proposed mitigation,
there would still be ``16 vessel strikes of Bryde's whales over 50
years, with 12 of these strikes expected to result in serious injury or
mortality'').
\24\ Hayes SA, Josephson E, Maze-Foley K, Rosel PE, Turek J,
editors. 2021. US Atlantic and Gulf of Mexico Marine Mammal Stock
Assessments 2020. Woods Hole (MA): National Marine Fisheries Service.
Report No.: NOAA Technical Memorandum NMFS-NE-271. 403 p. doi:10.25923/
nbyxp656 (estimating a ``potential biological removal'' of 0.1, which
means that only one Rice's whale can die from non-natural causes per
decade in order for the species to reach a sustainable population)
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Oil and gas industry operations in the Gulf of Mexico have already
very significantly degraded the population of Rice's whale, and they
are a major contributor to vessel strike risk for the whale. In 2020,
NOAA found that the oil and gas industry represents about one-third of
the total risk from vessels transiting through the whale's habitat.\25\
A very recent update by a former Duke University researcher using the
latest data on Rice's whale distribution shows that industry vessels
are responsible for an even larger share of that risk of ship strikes:
about 40% of the total.\26\ Furthermore, the National Marine Fisheries
Service estimates that the BP Deepwater Horizon oil spill eliminated
22% of the species' population.\27\
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\25\ 2020 Biological Opinion, supra, n. 22 at 358.
\26\ Spatial analysis of ship-strike risk for Rice's whale in the
Gulf of Mexico, Benjamin D. Best, Ph.D., available at https://
ecoquants.com/ricei/#ref-nmfsBiologicalOpinionfederally2020
\27\ 2020 Biological Opinion, supra n. 22 at 268.
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In the wake of the Deepwater Horizon disaster, the National Marine
Fisheries Service (NMFS) intensified its study of Rice's whale, and has
recently released serval peer-reviewed studies demonstrating that the
whale's habitat stretches across the continental shelf break in the
Northern Gulf of Mexico from the Mexico border to Florida. Based on
confirmed observations, acoustic recording of the whales' calls, and
habitat modeling, these studies demonstrate that the whale
``persistently'' occurs in waters 300-1200 feet (100-400 meters) deep
throughout this northern Gulf shelf break.28-31
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\28\ Soldevilla, et al., Spatial distribution and dive behavior of
Gulf of Mexico Bryde's whales: potential risk of vessel strikes and
fisheries interactions, 32 Endangered Species Rsch. 533 (June 2017),
available from https://repository.library.noaa.gov/view/noaa/16050.
\29\ NOAA RESTORE Science Program, ``Trophic Interactions and
Habitat Requirements of Gulf of Mexico Rice's Whales,'' available at
restoreactscienceprogram.noaa.gov/projects/rices-whales NOAA Fisheries,
``Trophic Interactions and Habitat Requirements of Gulf of Mexico
Rice's Whales,'' available at https://www.fisheries.noaa.gov/southeast/
endangered-species-conservation/trophic-interactions-and-habitat-
requirements-gulf-mexico
\30\ J.J. Kiszka, M. Caputo, J. Vollenweider, et al. Critically
endangered Rice's whale (Balaenoptera ricei) selectively feed on high-
quality prey in the Gulf of Mexico, Scientific Reports 13: art. 6710
(2023).
\31\ N.A. Farmer, J.R. Powell, J.A. Morris, Jr., et al. Modeling
protected species distributions and habitats to inform siting and
management of pioneering ocean industries: A case study for Gulf of
Mexico aquaculture, PLoS ONE 17: art. e0267333 (2022).
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The ``stipulated agreement'' referenced in H.R. 6008 is a federal
court-approved document that emerged from a court-supervised mediation
process. This agreement puts a hold on a lawsuit filed in 2020 against
a Trump Administration biological opinion governing Gulf of Mexico oil
and gas activities. That biological opinion failed to evaluate
accurately the potential for future oil spills in the Gulf and did not
require sufficient safeguards to protect imperiled Rice's whales, sea
turtles, and other endangered and threatened marine species from
industrial offshore drilling operations.
After more than two years of litigation, and based on new
information about oil spill risk and the new science about Rice's whale
habitat throughout the Gulf, the government announced that it would
reconsider that 2020 decision. In order to gain a more accurate and up-
to-date understanding of the threats to the whales--and the protections
to mitigate them--throughout its northern Gulf habitat, the government
is already engaged in this new biological review of the best available
science.
The ``stipulated agreement'' to temporarily pause the case while
this expanded assessment takes place is based on three short-term
actions that are designed to better safeguard Rice's whales during the
one-year period that the case is on hold:
1. The Bureau of Ocean Energy Management (BOEM) will exclude Rice's
whale habitat from any lease sales that occur while the
lawsuit stay is in effect.
2. BOEM will require future oil and gas leaseholders to reduce the
risks of vessel strikes to Rice's whales throughout their
northern Gulf habitat. Any lease sales held during the stay
of the lawsuit will include a requirement reducing oil-and-
gas-related vessel speed to 10 knots when traveling through
the whale's defined habitat until a new biological opinion
is completed.
3. BOEM notified existing oil and gas leaseholders of the threat
that vessels pose to Rice's whales and reminded operators
of their responsibilities to avoid ``take'' (harming,
killing, or harassing) of protected species when seeking
permits. It also outlined recommended vessel speed
reductions and measures operators should take in the
whales' habitat.
Expert scientists believe that these stop-gap measures established
in the ``stipulated agreement'' are insufficient to protect and recover
these whales in the long-term. Nevertheless, they will make conditions
relatively better for the whales while the government evaluates what
protective measures are needed to assure the species' long-term
survival. They are the kind of responsive actions that the Endangered
Species Act requires and encourages in light of new science.\32\
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\32\ See ``Editorial: Rice's whale is a rare Gulf treasure--one
endangered by oil drilling'' Houston Chronicle (Jan. 24, 2023).
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The first two of these measures are currently being challenged in
court by several oil companies and the State of Louisiana. That case is
ongoing. H.R. 6008 would not only short-circuit that litigation, but
would also prevent the government from implementing the agreement
itself, and thereby remove those protections for the whales at a time
when they are on the verge of extinction.
In addition to preventing the government from implementing these
interim measures that would help protect Rice's whale until the
government's evaluation is complete in September 2024, H.R. 6008 would
impose further layers of delay on efforts to establish other needed
protections.
Among other things, if approved, H.R. 6008 would prohibit BOEM from
moving forward to implement any other additional protections for Rice's
whales until a new Biological Opinion is completed. But at the same
time, it would delay and interfere with the agency's production of that
Biological Opinion. First, it would prohibit NMFS from beginning work
on a new Biological Opinion until after a recently-proposed Critical
Habitat Designation is finalized. And even after the agency's review is
complete, H.R. 6008 would require NMFS to await publication of a
separate and redundant National Academies study of the Rice's whale
range before it issues the new Biological Opinion. Such a study could
take several years to complete.
H.R. 6008 would further interfere with the government's ongoing
evaluation by requiring NMFS to hold special meetings with industry
about any proposed Reasonable and Prudent Alternatives (RPAs). This
unusual procedure would allow industry an unrebutted opportunity to
influence decisions on alternative actions.
In summary, H.R. 6008 would strip away vitally necessary
protections from a whale that is on the verge of extinction, and in
their place would impose a series of delays on efforts to reduce risks
posed to the whale by oil and gas activities in the Gulf of Mexico. In
so doing, it would increase the risks to that whale at precisely the
time it is most in need of the protections that are at the heart of the
Endangered Species Act. Accordingly, H.R. 6008 should not be approved.
Conclusion
All of the bills under consideration by the Subcommittee today that
are related to the Endangered Species Act--H.R. 520, H.R. 5504, and
H.R. 6008--are inconsistent with the central purposes and plain
language of that Act. They should not be approved.
Thank you again for the opportunity to meet with you today. I would
be glad to respond to questions.
______
Questions Submitted for the Record to Stephen Roady, Senior Lecturing
Fellow, Duke Law School
Questions Submitted by Representative Huffman
Question 1. Can you explain what opportunities for engagement and/
or input impacted parties, like oil and gas companies, had throughout
the stipulated agreement process for Lease Sale 261?
Answer. Thank you for your question. I am providing this response
in my individual capacity; it is not being presented as the position of
Duke University.
I appreciate the opportunity to address this issue, because there
was an unsubstantiated suggestion during the October 25 hearing that
the oil and gas industry was somehow not provided an opportunity to
engage in the process that led to the Stipulated Agreement with respect
to Lease Sale 261. That suggestion is not correct. In fact, it was the
oil and gas industry itself that introduced the idea for that process,
and the industry engaged in it closely from start to finish. And at the
end of that process, the oil and gas industry was provided a final
opportunity to comment. Although it expressed concerns, the industry
ultimately did not ask the supervising court to withhold approval of
the Agreement.
The Stipulated Agreement for Lease Sale 261 is the result of a
mediation process that was triggered by litigation filed originally in
2020 by several conservation groups against the federal government. I
was not involved in that litigation, but I have reviewed the publicly
available filings that are available in the court docket for that case.
Those court filings show that the oil and gas industry, including
several individual companies, were intervening parties to the
litigation and participated directly in the court-ordered mediation
process that culminated in the Stipulated Agreement. In particular,
those filings show that the American Petroleum Institute (API), on
behalf of the oil and gas industry, invited the court to require the
parties to the case ``to participate in a mediated settlement
discussion.'' These filing also show that the industry then
participated closely in that mediated discussion, and that it was that
discussion which eventually led to the Stipulated Agreement.
As is standard practice in mediation, this judicially-supervised
mediation process was subject to a confidentiality agreement, in order
to encourage full and frank discussions of positions. So, it is not
possible to know what positions those parties took during the mediation
process, or to assess the full nature of the discussions. But the court
record includes multiple filings demonstrating the industry's very
close involvement in the mediation process itself.
By way of background, the docket entries for this case show that
the Plaintiffs in the underlying litigation--Sierra Club, Center for
Biological Diversity, Friends of the Earth, and Turtle Island
Restoration Network--filed a case in the U.S. District Court for the
District of Maryland challenging a 2020 Biological Opinion issued under
the Endangered Species Act. Sierra Club, et al., v. National Marine
Fisheries Service., et al., No. 8:20-cv-03060 (filed Oct. 21, 2020)
(Complaint for Declaratory and Injunctive Relief). In that 2020
Biological Opinion, the National Marine Fisheries Service (Service)
endeavored to analyze whether the next 50 years of federally authorized
oil and gas activities on the outer continental shelf in the Gulf of
Mexico would jeopardize the continued existence of any threatened or
endangered species.
The 2020 Biological Opinion concluded that, without mitigation,
these oil and gas activities would jeopardize the survival and recovery
of the critically endangered Rice's whale. As required by the
Endangered Species Act, the Service therefore concluded the Biological
Opinion with a ``reasonable and prudent alternative'' that according to
the Service would, if adopted, prevent jeopardy to the whale by placing
a 10-knot speed limit and other related restrictions on oil and gas-
related vessel traffic in that particular part of the Gulf of Mexico
the Service then considered to be the whale's habitat. In their
complaint filed on October 21, 2020, the Plaintiffs challenged the
analysis in the Biological Opinion on multiple grounds as arbitrary and
capricious and challenged the Service's ``reasonable and prudent
alternative'' as insufficient to avoid jeopardy to Rice's whale, in
violation of the Endangered Species Act.
The American Petroleum Institute (API), EnerGeo, the National Ocean
Industries Association, and Chevron U.S.A. (Chevron) then moved to
intervene as defendant parties in the suit. The docket shows that the
court granted their intervention on May 12, 2021. The process that led
to the mediation and Stipulated Agreement began a bit later, as the
court briefings unfolded in the case.
Specifically, as reflected in the court docket, on October 25,
2022, the Bureau of Ocean Energy Management (BOEM) sent a letter to the
National Marine Fisheries Service requesting that the Service
reinitiate Endangered Species Act formal consultation on the 2020
Biological Opinion--to essentially start the process anew based on new
analyses of oil spill risks and other information. In response, the
Service filed a motion asking the court to remand that Biological
Opinion back to the Service, while leaving it in place, unchanged. The
docket entries reveal that this request essentially asked the court to
hand the matter back to the agency for a do-over, but to allow BOEM and
the Service to continue relying on the admittedly outdated Biological
Opinion to facilitate continuing oil and gas operations in the Gulf of
Mexico while a new Biological Opinion was being prepared.
The entries in the court docket next show that Plaintiffs opposed
the Service's request in large part because additional peer-reviewed
scientific evidence had emerged demonstrating that Rice's whales
``persistently occur'' throughout the northern Gulf of Mexico in waters
100-400 meters deep and were therefore at far higher risk than the
Service considered them to be in the 2020 Biological Opinion. The
Plaintiffs argued that--should the Court be inclined to grant a
voluntary remand of that Opinion while allowing oil and gas operations
to continue unchanged--the Court should at a minimum impose interim
protective measures that were necessary to protect the Rice's whale
from this far greater risk during the 2-year consultation process that
the Service and BOEM proposed to follow.
In responding to this request from the Plaintiffs for interim
protective measures for the Rice's whale, the American Petroleum
Institute (API) filed a document with the court stating that it was:
``willing to engage with Plaintiffs and Federal Defendants to
discuss potential voluntary interim measures that may be
protective during any remand. During prior related litigation,
a negotiated process was successfully used to develop interim
measures while the 2020 BiOp was being prepared, and could be
used again here. See Nat. Res. Def. Council v. Salazar, No.
2:10-cv-1882 (E.D. La.), Dkt. 189 (discussing 10-year history
of settlement discussions and implementation). To that end, the
Associations would not be opposed to an order requiring the
parties to participate in a mediated settlement discussion and
report back to the Court.''
The parties then presented oral argument to the court on the
question of how best to proceed, and at that argument, the court and
the parties agreed with API's suggestion for a mediated settlement
discussion. Accordingly, the docket reflects that on January 6, 2023,
the court entered an order referring the case to mediation with a
magistrate judge. The order specifically stated that the mediation
would ``include the plaintiffs, the defendants, and the intervenor
defendants.'' Thus, the oil and gas industry parties (the intervenor
defendants), after having suggested mediation, were expressly included
in the mediation process.
The docket entries show that the ensuing mediation process began in
late January and lasted until approximately mid-July, 2023. During that
time, the parties--including the oil and gas industry intervenors--met
in multiple sessions with a federal magistrate judge appointed by the
court. While the substance of those sessions is covered by a
confidentiality order signed by all the parties at the outset of the
mediation, the parties filed joint status reports generally updating
the court on the number of meetings held, summarizing the overall
progress of the discussions, and seeking to extend the time for the
discussions when warranted. The oil and gas industry intervenors signed
each of these joint status reports.
On July 21, 2023, the Plaintiffs and the Service filed the
Stipulated Agreement and asked to court to grant a stay of the
litigation based on their substantive agreements. The Stipulated
Agreement specified that the industry intervenors (including API and
Chevron) objected to the stay agreement and established a schedule for
them to present those objections to the court. In an August 4, 2023
filing, those objecting parties filed a response noting their
``concerns'' with the Agreement, but they did not formally object to
the entry of the agreement and the entry of a stay in that litigation,
stating: ``Intervenors do not object to the entry of an order that
requires Plaintiffs and [the federal government] to comply with the
terms of the agreement . . .''
In summary, the public record of the litigation that gave rise to
the Stipulated Agreement regarding Lease Sale 261 shows that the oil
and gas industry was intimately involved with the mediation process
that led to that Agreement. The mediation was prompted by a suggestion
from the industry itself, industry representatives engaged directly in
that mediation process, and ultimately did not object to an order from
the court that directed the government to comply with the terms of the
Agreement. While API, Chevron, and the other oil and gas industry
parties to that litigation did not agree to the results of the court-
supervised mediation process, they were nonetheless directly involved
in that process from the very beginning.
Questions Submitted by Representative Dingell
Question 1. The Endangered Species Act protects a number of marine
species in the Gulf of Mexico, including the Gulf sturgeon, Florida
manatee, and five species of marine turtles. How does the ESA manage to
protect these and other species without causing a shutdown or collapse
of commercial activity along the Gulf coast?
Answer. Thank you for your question. I am providing this response
in my individual capacity; it is not being presented as the position of
Duke University.
I appreciate the opportunity to address this issue, because there
were suggestions during the October 25 hearing that the Endangered
Species Act, (ESA) as applied to Lease Sale 261 in the Gulf of Mexico,
might create significant adverse effects on the oil and gas industry,
with the potential for highly negative economic impacts on the region.
These suggestions are inaccurate. In fact, the Act is designed, and
typically implemented, in a manner that carefully takes account of its
potential effects on commercial activity. It has been in place since
1973, during which time hundreds, or even thousands, of oil and gas
wells and associated exploration, development, and energy production
activities have been initiated and operated in the Gulf region. The
process that has been proposed by the government in an effort to comply
with the ESA in connection with Lease Sale 261 continues the tradition
of developing ways to protect endangered species without shutting down
or collapsing commercial activity.
Congress enacted the ESA in 1973 to ``provide a means whereby the
ecosystems upon which endangered species and threatened species depend
may be conserved, [and] to provide a program for the conservation of
such endangered species and threatened species.'' 16 U.S.C.
Sec. 1531(b). The ESA seeks to protect and recover imperiled species
and populations by first listing them as threatened or endangered based
on enumerated statutory factors. Id. Sec. 1533(a)(1)(A)-(E); see id.
Sec. 1532(6),(20). The Act further provides for the designation of
protected critical habitat for threatened and endangered species. Id.
Sec. 1533(a)(3)(A)(i).
Section 7(a)(2) of the ESA requires each federal agency to ``insure
that any action authorized, funded, or carried out by such agency . . .
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of [critical] habitat of such species.'' Id.
Sec. 1536(a)(2). The ESA and its implementing regulations establish an
interagency consultation process to assist federal agencies in
complying with this duty. An agency must consult with the appropriate
wildlife service--the U.S. Fish and Wildlife Service or, in the case of
oil and gas activity in the Gulf of Mexico, the National Marine
Fisheries Service (NMFS)--under Section 7 whenever it takes an action
that ``may affect'' a threatened or endangered species or critical
habitat. Id.; 50 C.F.R. Sec. 402.14(a). In accordance with this
statutory process, the Department of the Interior's Bureau of Ocean
Energy Management (BOEM) consulted with NMFS to determine whether lease
sales in the Gulf of Mexico could affect threatened or endangered
species, such as Rice's whale.
In fulfilling the requirements of Section 7, agencies must ``use
the best scientific and commercial data available.'' 16 U.S.C.
Sec. 1536(a)(2). If the agency taking the action (the action agency)
concludes the action may affect listed species or their critical
habitats, it must initiate formal consultation with NMFS, unless the
action agency determines and NMFS concurs in writing that the action is
``not likely to adversely affect'' any listed species or critical
habitat. 50 C.F.R. Sec. Sec. 402.13(c), 402.14(a), (b)(1). The result
of the consultation between NMFS and BOEM regarding oil and gas
activities in the Gulf was a decision that those activities could
affect ESA-protected species; therefore, the two agencies entered into
the formal consultation process.
Under the ESA, formal consultation requires NMFS to: (1) evaluate
the current status and environmental baseline of affected species and
critical habitats, (2) assess the effects of the action and cumulative
effects on those species and habitats, and (3) analyze whether the
effects of the action, when added to the environmental baseline
together with any cumulative effects, is likely to jeopardize the
continued existence of the species or adversely modify their critical
habitats. Id. Sec. 402.14(g). At the conclusion of formal
consultation, NMFS issues a biological opinion assessing the effects of
the action and making a formal determination regarding whether the
action is likely to ``jeopardize the continued existence of'' the
species or adversely modify their critical habitats. 16 U.S.C.
Sec. 1536(b)(3)(A); 50 C.F.R. Sec. 402.14(e),(h).
ESA regulations define ``jeopardize the continued existence of''
as, ``to engage in an action that reasonably would be expected,
directly or indirectly, to reduce appreciably the likelihood of both
the survival and recovery of a listed species in the wild by reducing
the reproduction, numbers, or distribution of that species.'' 50 C.F.R.
Sec. 402.02. These regulations also define ``destruction or adverse
modification of critical habitat'' as ``a direct or indirect alteration
that appreciably diminishes the value of critical habitat as a whole
for the conservation of a listed species.'' 50 C.F.R. Sec. 402.02.30.
Importantly, and highly pertinent to this question from
Representative Dingell, a conclusion by NMFS that the proposed action
is likely to jeopardize a listed species or result in adverse
modification of its critical habitat does not automatically prevent
that action from proceeding. Instead, the ESA and its implementing
regulations provide a way for the action to proceed with certain
modifications. Thus, in the case of oil and gas activity in the Gulf of
Mexico that has the potential to jeopardize any ESA-protected species,
NMFS can propose ``reasonable and prudent alternatives'' (RPAs) to the
action that will allow the activity to go forward in some fashion,
while avoiding jeopardy, and also avoiding adverse modification of
critical habitat. 16 U.S.C. Sec. 1536(b)(3); 50 C.F.R.
Sec. Sec. 402.02, 402.14(h)(2). In addition, the ESA allows the
government to consider the economic impact of designating critical
habitat for any listed species. 16 U.S.C. Sec. 1533(b)(2).
Following a determination that a particular activity is likely to
jeopardize a species listed as protected under the ESA, the action
agency and the consulting agency develop these ``reasonable and prudent
alternatives'' to proposed actions by negotiating among themselves.
Through this process, the agencies often are able to identify measures
that reduce or eliminate the harm to species, while allowing the
activity to move ahead. Many times, these RPAs are the result of expert
biologists working to come up with different solutions to modify
activities and to develop mitigation that protects the species in
question. As an example of the kinds of measures negotiated among
government agencies (at both the state and federal level) as a way to
protect endangered species, there are boating speed limits for ESA-
manatees, which allow recreational boating and fishing to proceed in
areas frequented by those manatees. Similarly, the government has
established various nesting beach protection and low-lighting mandates
in order to protect sea turtles that are listed as threatened or
endangered under the ESA, while still allowing beachfront properties
and hotels to operate.
In addition, with respect to designation of critical habitat, the
ESA authorizes the government to consider potential economic effects.
This provision allows the government to consider whether protecting
certain areas could result in adverse economic consequences. As a
result, both the U.S. Fish and Wildlife Service and the National Marine
Fisheries Service typically scrutinize the economic impacts of
potential critical habitat designations.
As relevant for Lease Sale 261, NMFS issued a Biological Opinion in
2020 that was designed to analyze whether the next 50 years of
federally authorized oil and gas activities on the outer continental
shelf in the Gulf of Mexico would jeopardize the continued existence of
any threatened or endangered species. That Biological Opinion concluded
that, without mitigation, these oil and gas activities would jeopardize
the survival and recovery of the critically endangered Rice's whale.
NMFS then established a ``reasonable and prudent alternative'' that in
its view would prevent jeopardy to the whale by placing a 10-knot speed
limit and other related restrictions on oil and gas-related vessel
traffic in that particular part of the Gulf of Mexico the Service then
considered to be the whale's habitat. Several conservation groups
challenged this RPA approach as insufficient to avoid jeopardy to
Rice's whale.
During the pendency of this litigation, peer-reviewed scientific
evidence emerged demonstrating that Rice's whales ``persistently
occur'' throughout the northern Gulf of Mexico in waters 100-400 meters
deep and were therefore at far higher risk than the Service considered
them to be in the 2020 Biological Opinion. As a result of this new
evidence, the government sought to reinitiate Endangered Species Act
formal consultation on the 2020 Biological Opinion. The parties to the
litigation then entered into a mediated settlement discussion regarding
how best to protect whales while this new consultation process went
forward. During that same period, the Service also proposed new
critical habitat for Rice's whales in an area along the continental
shelf break in the Gulf. 88 Federal Register 47453-47472 (July 24,
2023). In determining this critical habitat, the Service considered the
possible resulting economic effects and explained its reasoning for
delineating the scope of the area covered. 88 Federal Register at
47463-47466.
As a result of this mediated settlement discussion over the 2020
Biological Opinion, the court has recently approved a Stipulated
Agreement that would allow the government (BOEM and NMFS) to apply new
science to the protection of the critically-endangered Rice's whale,
while establishing certain restrictions on the scope of Lease Sale 261.
These restrictions would include extending protections within the new
critical habitat proposed by the government on July 24, 2023. When the
government turned to applying these protections to Lease Sale 261, it
allowed approximately 92% of the original area proposed for that sale
to remain open for oil and gas exploration and development. This
decision-making process is fully in keeping with the careful approach
authorized under the ESA, which endeavors to protect listed species,
while also allowing for significant commercial activities to proceed.
If followed, it will be another example of the way in which the
purposes of the ESA can be achieved, and endangered species can be
protected, without either shutting down or collapsing affected
commercial activity.
Thank you again for this opportunity to respond to the questions
from Subcommittee Ranking Member Huffman and Representative Dingell.
______
Mr. Bentz. Thank you, Mr. Roady. The Chair recognizes Mr.
Robert Beal, Executive Director of the Atlantic States Marine
Fisheries Commission in Arlington, Virginia.
Mr. Beal, you are recognized for 5 minutes. I remind you to
please speak directly into the microphone, like within 1 inch
from your mouth, please.
[Laughter.]
Mr. Bentz. I am not joking. We can't hear you up here, and
that is no good, if you are a witness and we can't hear you.
So, please.
Mr. Beal. I will keep leaning in, and let me know if I need
to get closer.
STATEMENT OF ROBERT E. BEAL, EXECUTIVE DIRECTOR, ATLANTIC
STATES MARINE FISHERIES COMMISSION, ARLINGTON, VIRGINIA
Mr. Beal. Good afternoon, Chairman Bentz, Ranking Member
Huffman, and members of the Subcommittee. My name is Bob Beal,
I am the Executive Director for the Atlantic States Marine
Fisheries Commission.
ASMFC is an interstate compact of the 15 East Coast states,
and manages 27 species of near-shore migratory finfish and
shellfish species. The Commission manages some of the East
Coast's most productive and economically important and iconic
fisheries. It is my pleasure to be here today to comment on
H.R. 5103, the FISHES Act.
As I just mentioned, I work for 15 Atlantic coastal states.
And to get that group of diverse states to agree on anything is
no small feat. But however, in this instance, those member
states unanimously support any effort to accelerate the
distribution of disaster assistance to fisheries participants.
Timely distribution of fishery disaster funding is critical
to maintaining the economic viability of coastal communities.
In addition to direct assistance to fishery participants in
their communities, disaster assistance can be used to prevent
future failures and restore affected fisheries.
Fisheries can be very fragile. Stocks we manage are
impacted by numerous natural and anthropogenic events that
result in fishery declines. Fishery disasters impact vessel
owners, crews, dealers, processing facilities, subsistence
harvesters, ports, tourism, restaurants, and so on down the
line.
In 1996, Congress amended the Magnuson-Stevens Fishery
Conservation and Management Act to develop a process for
providing fishery disaster assistance to fisheries participants
in their communities. There have been 136 disaster requests
submitted to the Secretary of Commerce. Of those requests, 103
have been approved, 16 have been declined, and 11 are still
pending Secretarial decision. Of the pending requests, the
Hurricane Sally disaster request was submitted nearly 3 years
ago, and still is awaiting Secretarial determination.
The Secretarial determination period can vary from a couple
of months to multiple years with no timing requirements in the
statute. The current fishery disaster program is a lengthy,
multi-step process that involves gubernatorial or tribal
requests, Federal data analysis, Secretarial review,
congressional appropriation, followed by a state spend plan
development and a review by NOAA Fisheries and the Office of
Management and Budget. And after all those steps, finally,
money is able to be distributed to those in need after a
fishery disaster.
The 117th Congress passed the Fishery Resource Disaster
Improvement Act, or FReDI, which made numerous improvements to
the disaster assistance program. FReDI put timelines on NOAA to
distribute funding and make decisions for stakeholders after
the appropriation from Congress. One thing worth noting is that
FReDI did not put a timeline on the OMB to approve spend plans.
The FISHES Act aims to rectify this source of delays.
There are multiple examples of fisheries disasters where
participants didn't receive assistance until years later. The
timeline stands in contrast to the much faster assistance
programs in other industries, such as agriculture. Farmers get
rapid assistance through insurance, direct payments, low-
interest loans, cost share programs, all of which are either
under-developed or completely non-existent for fisheries.
As a recent example, the 4-year process to distribute funds
following the 2019 Atlantic herring disaster up in the
Northeast resulted in a number of observations from our member
states. They noted that multiple entities defaulted on loans,
including vessel owners and dealers; there were multiple crew
layoffs; crews needed to leave the East Coast and move to the
West Coast to find work; 150-year-old companies and family
operations had to close their doors due to lack of funding.
The worst part about the delays in funding is that often
the assistance only reaches stakeholders after they left the
industry, sold their boat or businesses or, in some cases, even
passed away. Our stakeholders need a better support mechanism
following a fishery disaster.
Climate change is resulting in substantial changes in
fisheries distribution and productivity, as well as increased
natural disasters. Also, the rapid development of offshore wind
projects along the Atlantic Coast will have impacts on
fisheries that are not fully understood. These factors are
likely to increase the frequency of fisheries disasters and the
need for an effective disaster assistance program.
Our stakeholders can't wait multiple years for lifelines.
The FISHES Act is a step forward in addressing regulatory
hurdles by placing a 30-day decision requirement on OMB to
either approve or deny state spend plans, which this step has
taken up to a year in past examples. This change will shorten
the timeline in an effort to make the relief funds relevant to
the stakeholders who have suffered economic losses.
ASMFC also supports removing the OMB state spend plan
review from the process, and allowing NOAA Fisheries to provide
the final approval of state spend plans. For this reason, ASMFC
and member states supports the FISHES Act.
And thank you for your time, and I am happy to answer any
questions.
[The prepared statement of Mr. Beal follows:]
Prepared Statement of Robert E. Beal, Executive Director, Atlantic
States Marine Fisheries Commission
on H.R. 5103
Chairman Bentz, Ranking Member Huffman, and members of the
subcommittee, thank you for the opportunity to testify on H.R. 5103,
the Fishery Improvement to Streamline untimely regulatory Hurdles post
Emergency Situation Act, or the FISHES Act, introduced by
Representative Donalds.
My name is Bob Beal, I am the Executive Director of the Atlantic
States Marine Fisheries Commission, which I will refer to as ``ASMFC''.
ASMFC is a Compact of the 15 Atlantic coastal states which manages
nearshore migratory marine fisheries occupying multiple states' waters
from zero to three miles offshore. In 1942, the 77th U.S. Congress
approved ASMFC's Compact and in doing so, recognized the need to manage
our fisheries as a shared, collective resource for all public benefit.
We were granted management authority in 1984 and 1993 through the
Atlantic Striped Bass Conservation Act \1\ and the Atlantic Coastal
Fisheries Cooperative Management Act.\2\ Today, the Commission manages
27 of the East Coast's most productive, economically important, and
iconic fisheries, nine of which are cooperatively managed with our
federal partners at NOAA Fisheries.
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\1\ 16 U.S.C. Sec. 5151
\2\ 16 U.S.C. Sec. 5101
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Our member states are supportive of any effort to accelerate the
distribution of disaster assistance to fishery participants. Timely
distribution of fishery disaster funding is critical to maintaining the
economic viability of fisheries that are an essential part of coastal
communities. These fisheries provide subsistence for countless
individuals and are the keystones of economies in many rural locations.
In addition to direct assistance to fishery participants and their
communities, disaster assistance can be used to prevent future failures
and restore affected fisheries.
Fisheries can be a fragile resource. The stocks we manage are
impacted by numerous natural and man-made events beyond our control
that cause population declines. The impacts of those declines have a
ripple effect beyond just those on the boats. Closures and decreases in
access to fisheries caused by events such as oil spills, hurricanes,
and fishery failures have impacts on vessel owners, crews, processing
facilities, ports, tourism, and restaurants. There are numerous
examples of this economic keystone failing, and participants not
receiving assistance until years later. This timeline stands in
contrast to much faster assistance programs for other industries such
as in agriculture.
Since the fisheries disaster program was initiated there have been
136 disaster requests submitted to the Secretary of Commerce. Of those
requests, 103 have been approved, 16 denied, two partially approved,
three withdrawn, one undetermined, and 11 pending. Of the pending
requests, the Hurricane Sally disaster request was submitted nearly 3
years ago with no determination (NOAA Fisheries, 2023). This
Secretarial determination period can vary from a couple of months to
multiple years with no timing requirements in statute.
In 1996 Congress amended the Magnuson-Stevens Fishery Conservation
and Management Act \3\ (or MSA) to develop a process for giving ad hoc
assistance to commercial fishery participants, tribal subsistence
fishery participants, charter boats, headboats, and processers, who
have experienced significant economic losses due to unforeseen events.
The MSA states that to provide assistance, a disaster declaration must
be requested by an eligible entity, there needs to be a positive
determination, and declines must be due to an allowable cause. All of
those terms are defined by NOAA below.
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\3\ 16 U.S.C. Sec. 1861
``A request for a fishery resource disaster determination is
generally made by the Governor of a State, an official
resolution of an Indian Tribe, or other comparable elected or
politically appointed representative as determined by the
Secretary of Commerce (Secretary). The Secretary may also
initiate a review at their own discretion'' (National Oceanic
---------------------------------------------------------------------------
and Atmospheric Association, 2023)
``Upon receipt of a request for a fishery disaster
determination, the Secretary will conduct a review of the best
scientific information. Such review may include an analysis of
the following factors: fishery characteristics, stock
assessment, estimates of mortality, and overall effects in
order to assess the existence of a fishery resource disaster
and the cause(s) of the disaster. The review should be
conducted in consultation with the affected State(s), and
should consider such information and supporting data as the
State(s) provide'' (Kelly Denit, NOAA Fisheries, 2021)
``Under MSA 312(a), the allowable causes for a fishery resource
disaster are natural causes; undetermined causes; or, man-made
causes beyond the control of fishery managers to mitigate
through conservation and management measures, including
regulatory restrictions (including those imposed as a result of
judicial action) imposed to protect human health or the marine
environment. Regulatory or judicial actions do not constitute
``man-made'' causes, except where imposed to protect human
health or the marine environment.'' (Kelly Denit, NOAA
Fisheries, 2021)
At the end of the 117th Congress, the Fisheries Resource Disasters
Improvement Act,\4\ or FReDI, was passed. Amendments made to MSA
through this act put timelines on NOAA to distribute funding to
stakeholders after appropriation from Congress. FReDI also eliminated
an alternative avenue for fisheries disaster determination by removing
section 308 from the Interjurisdictional Fisheries Act.
---------------------------------------------------------------------------
\4\ 16 U.S.C. Sec. 1861a(a)
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Here is a step-by-step timeline of the improved process:
1. An eligible entity (e.g Governor, Tribal representative, or other
qualified applicant) requests a fishery disaster
determination from the Secretary of Commerce.
2. The National Marine Fisheries Service conducts an evaluation to
determine whether a qualifying fishery disaster has
occurred.
3. The Secretary makes a determination based upon the evaluation and
notifies the requestor of the determination.
4. If the determination is positive, Congress can appropriate funds
for fishery disaster relief on an ad hoc basis.
5. If Congress appropriates fishery disaster relief funds, NOAA
works with the affected parties to distribute the funds
consistent with the statutory requirements and conditions
of the appropriation. (Kelly Denit, NOAA Fisheries, 2021)
a. Within 14 days, NOAA coordinates with OMB to determine
the allocation of funds
b. Within 120 days, States create and submit spend plans to
NOAA
c. Within 90 days, NOAA approves the spend plan and submits
it to OMB for approval
d. OMB approves the spend plan (with no timing requirement)
e. State receives approval to spend funds in accordance with
their approved spend plan
Relief funding is often disbursed through the interstate fisheries
commissions, including ASMFC. When we are asked to distribute funds to
affected stakeholders, we work as quickly as possible to do so. The
Fisheries Resource Disasters Improvement Act made significant
improvements in the timeline for disaster relief distribution, however,
it did not explicitly state that OMB must also comply with the new
timelines. In the past, OMB has taken up to a year to approve spend
plans, proving to be a significant gap in the law.
Comparisons between fisheries disaster support systems and those
for the agriculture industry are, surprisingly, apples to oranges. Both
industries are the bedrock of rural economies and both experience
production and economic losses in similar ways. The difference in
support stems from key infrastructure differences. Farmers get
assistance through insurance, direct payments, low-interest loans, and
cost-share programs, all of which are underdeveloped or non-existent
for fisheries. (Stubbs, 2023) These systems are especially needed in
the time immediately after a disaster has occurred.
The FISHES Act is a step forward in addressing regulatory hurdles
for fisheries. FISHES puts a 30-day decision requirement on OMB to
deny/approve a State's spend plan. OMB must work within NOAA's broader
90-day spend plan approval timeline to comply.
The 2019 Atlantic herring disaster impacted the greater Atlantic
region after there were low levels of reproduction. The stock was not
overfished nor experiencing overfishing. The positive disaster
determination came in late 2021 and funds finally reached the hands of
those impacted in 2023, 4 years after the disaster had occurred. This
had dire consequences for individuals and businesses participating in
the herring fishery.
Our member States have shared personal anecdotes about the impacts
delays after the herring disaster had on their communities. In
summation, we've heard about:
Multiple entities defaulting on loans (vessel owners and
dealers)
Crew layoffs
Crew needing to find work elsewhere, moving to the West
Coast to do so
Companies 150 years old and family operations closing
their doors
The worst part about the delays is that often the assistance only
reaches stakeholders after they've left their industry, sold their
boat, or in some cases, passed away. Our stakeholders need better
support mechanisms, and any effort that can be made toward this end
goal is appreciated. This includes efforts made to remove or put
restrictions on OMB's role in the process.
Climate Change is resulting in increased uncertainty with natural
disasters becoming more and more common. It's also leading to
substantial changes in fisheries distribution and productivity. These
climate-induced changes are likely to increase the frequency of fishery
disasters and the need for effective disaster assistance programs. To
better predict and reduce the fishery disasters resulting from climate
change, fishery managers will rely on a robust fishery data collection
and analysis program. Congress will need to provide resources to the
states and NOAA Fisheries to support effective fisheries monitoring
programs.
Also, the rapid development of offshore wind projects along the
Atlantic coast will have impacts on fisheries that are not yet fully
understood. The cumulative impacts of fisheries displacement and the
potential changes to larval disbursement, caused by development, could
create a future need for fishery disaster support.
Our stakeholders can't wait years for lifelines. The FISHES Act
would help shorten this timeline in an effort to make the relief funds
relevant to the stakeholders who have suffered. By imposing a strict
timeline on the Office of Management and Budget, acknowledging their
role in the delays, and adding transparency to the process, this bill
is a step forward in improving the process and timing of distributing
assistance to those impacted by fisheries disasters. This bill would
help fishery participants weather fishery disasters, retain fishery
infrastructure, and increase the likelihood of sustained economic
viability of a centuries-old way of life in our country.
For these reasons, ASMFC is supportive of the bill. Thank you again
for your time. I welcome any questions you have.
______
Mr. Bentz. Thank you.
The Chair recognizes Mr. Jonathan Wood, Vice President of
Law and Policy at the Property and Environment Research Center
in Bozeman, Montana.
Mr. Wood, you are recognized for 5 minutes.
STATEMENT OF JONATHAN WOOD, VICE PRESIDENT OF LAW AND POLICY,
PROPERTY AND ENVIRONMENT RESEARCH CENTER, BOZEMAN, MONTANA
Mr. Wood. Thank you, Chairman Bentz, Ranking Member
Huffman, and members of the Subcommittee. Thank you for the
invitation to participate in this afternoon's discussion of
numerous important bills.
My remarks will focus on H.R. 5504, in particular, the
blocking of two proposed regulations from the Fish and Wildlife
Service and the National Marine Fisheries Service. Those
proposed regulations would set back species recovery by
undermining incentives for habitat restoration and proactive
conservation efforts.
I am Jonathan Wood with the Property and Environment
Research Center, the national leader in market solutions for
conservation. Through research, law and policy, and innovative
conservation projects, PERC explores how aligning incentives
for environmental stewardship produces sustainable outcomes for
land, water, and wildlife.
On the 50th anniversary of the Endangered Species Act, we
are falling far short of its ultimate goal of recovering
species. True, we have been successful at a key part of that
goal: preventing extinction so that recovery remains possible.
Impressively, less than 1 percent of listed species have been
declared extinct under the Act to date. However, only 3 percent
of listed species have recovered, and only 4 percent are even
improving, according to the Fish and Wildlife Service. Those
poor recovery results are far below our expectations. According
to PERC's research, the Service predicted the recovery of 300
species by now. Only 11 of those species have actually
recovered.
Last month, PERC released a Field Guide to Wildlife
Recovery, which has dozens of ideas for how to recover more
species through better incentives for habitat restoration and
proactive conservation effort. The report covers a wide range
of reform ideas, including making recovery planning more
effective, reducing conflict over species reintroductions, and
rewarding Federal agencies, states, and landowners for progress
toward recovery.
Today, I will focus on two of those ideas, and how
recently-proposed regulations move us in the opposite
direction, stoking conflict while undermining conservation
incentives.
The first concerns the regulation of threatened species.
The ESA provides more stringent regulation of endangered
species and threatened ones. Congress' decision to tailor
regulations for threatened species makes imminent sense. If
regulations were lax as species recover, states and landowners
have an incentive to work toward that recovery. On the other
hand, if regulations tighten should a species decline, they
have a really strong incentive to prevent that result, too. In
our field guide, PERC recommends enhancing these incentives by
designing threatened species regulations as what we call
roadmaps to recovery.
For species like the lesser prairie chicken, this would
mean a roadmap, or this would mean setting incremental recovery
targets for the species, and gradually reducing the extent and
stringency of Federal regulation. The idea is constantly be
providing some degree of regulatory relief in exchange for
direct and meaningful progress toward recovery. This way,
states and landowners have a direct incentive to make continual
progress toward recovery.
Needless to say, this is not the approach the Service took
in its controversial regulation for the lesser prairie chicken,
but it is an important and often missing opportunity.
The Biden administration recently proposed a blanket rule
under which threatened species would automatically be regulated
as if they were endangered. It would do so without considering
whether that is the best approach for each threatened species.
This scientific and illegal rule would undermine recovery by
making states and landowners indifferent to whether species are
improving or declining. From the perspective of the regulated
community, this rule would mean it does not matter whether
species are endangered and threatened, and that is the wrong
approach.
Ironically, the Biden administration's own actions show
that the blanket rule would be bad for species. Under current
policy, the Service tailors regulations for the unique needs of
each species, and could impose endangered-level regulation for
a species if that were the right fit. To date, the
Administration has rejected that approach for every single
animal it has listed as threatened. Yet, it now proposes a
blanket policy which would impose an approach it consistently
rejects when it actually considers what is best for species.
The second idea from PERC's field guide that I want to
discuss is better incentives for habitat restoration.
Currently, the main tool for this under the ESA is Designation
of Critical Habitat, but this is far from a perfect tool.
Indeed, the Service's Director, Martha Williams, has previously
written that critical habitat designations ``have very little
impact, from a conservation perspective.''
To have a better impact, incentives must be directly
addressed in the designation process. We must avoid
designations that impose large burdens while providing little
benefit to species, as happened with the dusky gopher frog. In
those cases, other tools are needed to encourage habitat
conservation and restoration.
Unfortunately, the Service recently proposed regulations
that would ignore whether a critical habitat designation will
contribute to a species recovery or whether a designated area
has the features species need to thrive. Doing so would be a
step backward that would again ignore the incentives needed for
habitat restoration. Blocking these proposed regulations is an
important step, but ultimately more must be done if we are
going to do better at recovering species in the ESA's second
half-century than we have done in its first.
PERC has lots of ideas about how to provide those better
incentives for states and private landowners, and I look
forward to discussing them with you during your questions.
Thank you.
[The prepared statement of Mr. Wood follows:]
Prepared Statement of Jonathan Wood, Vice President of Law and Policy,
Property and Environment Research Center (PERC)
on H.R. 929
Main Points
Although the Endangered Species Act has been effective at
preventing extinctions, only 3% of listed species have
achieved its ultimate goal of recovery. The key to
recovering more species is to encourage habitat restoration
and other proactive conservation efforts. To do so, ESA
regulations must better align the incentives of states and
landowners with the interests of imperiled species.
Instead, the Fish and Wildlife Service has proposed to
regulate threatened species as if they were endangered,
making states and landowners indifferent to whether species
are improving or declining.
The Service has also proposed to increase conflict over
critical habitat by ignoring whether designations
contribute to recovery and whether designated land has the
features species need to flourish.
Blocking these proposals is a step in the right direction,
but more is needed to deliver on the ESA's promise of
recovering species.
Introduction
Chairman Bentz, Ranking Member Huffman, and members of the
committee, thank you for the invitation to participate in this
afternoon's discussion. While this hearing concerns numerous bills, my
remarks will focus on the Endangered Species Act, proposed threatened-
species and critical-habitat regulations that would set back species
recovery, and H.R. 5504's proposal to block those counterproductive
regulations.
The ``ultimate goal'' of the Endangered Species Act is to recover
species to the point that they are no longer threatened with
extinction.\1\ The ESA has been effective at achieving part of this
goal, preventing extinction so that it is possible to recover species.
Although 32 species have tragically been declared extinct,\2\ 99% of
listed species persist to this day. However, disappointingly few
species have recovered (3%) \3\ or are improving (4%).\4\
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\1\ U.S. Fish & Wildlife Serv., ESA Basics: 50 Years of Conserving
Endangered Species (2023).
\2\ See U.S. Fish & Wildlife Serv., Press Release, Fish and
Wildlife Service Delists 21 Species from the Endangered Species Act due
to Extinction (Oct. 16, 2023); ECOS, Delisted Species (last visited
Oct. 19, 2023).
\3\ See Katherine Wright & Shawn Regan, Missing the Mark: How the
Endangered Species Act Falls Short of Its Own Recovery Goals, PERC
(2023).
\4\ See Department of the Interior, 2017/2018 Annual Performance
Plan & 2016 Report 15 (May 26, 2017).
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The reason for the dearth of recoveries is poor incentives for
habitat restoration and other proactive recovery efforts. To fix this,
PERC released last month A Field Guide for Wildlife Recovery that
explores how ESA implementation could be strengthened to deliver on the
law's promise of recovery.\5\
---------------------------------------------------------------------------
\5\ See PERC, A Field Guide for Wildlife Recovery: The Endangered
Species Act's Elusive Search to Recover Species--and What to Do About
It (2023).
---------------------------------------------------------------------------
Unfortunately, the Fish and Wildlife Service has recently proposed
regulations that would worsen recovery incentives and set back species
conservation. One of these regulations proposes to automatically impose
on threatened species the prohibitions Congress designed for endangered
species, without regard to the unique needs of each species and the
best approach to encourage its recovery. Another would stoke conflict
and distract from conservation by eliminating requirements that the
Service consider whether an area designated as critical habitat will
contribute to a species recovery and contains the features species need
to flourish. Blocking these rules, as H.R. 5504 would, is a positive
step to improve recovery incentives. But more is needed to fully
realize the ESA's potential. I urge the Committee to consider
additional reforms, like those proposed in PERC's Field Guide, to spur
habitat restoration and proactive recovery efforts and make species an
asset rather than a liability.
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. PERC and its affiliated
scholars have long studied the ESA and how it could be better
implemented to empower states to lead in recovering species, to remove
perverse incentives that set species back, and to create the positive
incentives needed to spur habitat restoration and proactive recovery
efforts.\6\
---------------------------------------------------------------------------
\6\ See Field Guide, supra n. 5; Missing the Mark, supra n. 3;
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).
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The Unfulfilled Promise of Recovery
The purpose of the ESA is to ``conserve'' listed species and their
habitats, with conservation defined explicitly in recovery terms.\7\
This recovery mandate is reflected in every significant provision of
the act.\8\ Consequently, there is broad agreement that the act's goal
is ``in a word . . . recovery,'' as Michael Bean once put it.\9\ But we
are not recovering species at the rate we should be. Over the last 50
years, only 3% of species have recovered.\10\ Using newly compiled Fish
and Wildlife Service data, a recent PERC study found that the Service
predicted the recovery of 300 species by now, but scandalously few of
those species have actually recovered.\11\ Indeed, the recovery rate
for species predicted to recover by now--species which should be easier
and quicker to recover than average--is little better than the rate for
all listed species (4% v. 3%).\12\ Nor are we likely on the verge of a
dramatic increase in the recovery rate. According to the most recent
data from the Service, only 4% of species are even improving and,
therefore, on the road to recovery.\13\
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\7\ 16 U.S.C. Sec. Sec. 1531(b), 1532(3) (defining conservation as
bringing listed species ``to the point at which the measures provided
pursuant to this chapter are no longer necessary'').
\8\ 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).
\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 Missing the Mark, supra n. 3.
\11\ See id.
\12\ See id.
\13\ See Performance Plan, supra n. 4 at 15.
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The lack of progress toward species recovery should alarm all of us
concerned with wildlife conservation. But entrenched political conflict
distracts us from focusing on recovery and finding ways to better
deliver on the ESA's promise. Ultimately, wildlife pays the price for
this conflict. Species that don't improve and recover are left
perpetually on the precipice of extinction. For instance, there are
only 135 dusky gopher frogs left at six sites in Mississippi.\14\
Without habitat restoration and proactive recovery effort, the species
will remain extremely vulnerable to drought and floods that could
damage its little remaining habitat and cause its extinction.\15\
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\14\ See Field Guide, supra n. 5 at 22-23.
\15\ See id. at 22-25.
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But the current approach to implementing the ESA does not
adequately encourage habitat restoration and proactive conservation.
The Fish and Wildlife Service has made little progress in implementing
recovery plans.\16\ States have limited flexibility to innovate.\17\
And heavy-handed regulations discourage landowners from restoring
habitat or, worse, encourage them to preemptively destroy habitat
before it can attract a species and the regulations that accompany
it.\18\
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\16\ See Missing the Mark, supra n. 3. Recovery plans may also not
correctly anticipate what species need to recover, as recovered species
have on average completed or partially completed only 28% of the
actions described in their recovery plans. See id.
\17\ See Field Guide, supra n. 5 at 26-29.
\18\ See id. at 44.
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To boost species recovery, we need better incentives for federal
officials, states, tribes, and private landowners to restore habitat
and invest in proactive conservation. That is the key challenge we face
in the ESA's second half-century. PERC's Field Guide for Wildlife
Recovery offers dozens of ideas for how to do this, including making
recovery planning more effective, reducing conflict over reintroduction
efforts, and rewarding federal agencies, states, and landowners for
progress toward recovery. Unfortunately, the proposed rules we're
discussing today do the opposite, stoking conflict while undermining
recovery incentives.
A Cookie-Cutter Approach Where Creativity is Needed to Encourage
Recovery
In June, the Service proposed to restore the so-called ``blanket
rule'' under which the Endangered Species Act's regulations for
endangered species would automatically apply to threatened species as
well.\19\ This would replace the current approach of tailoring
regulations to the unique needs of each threatened species.\20\ The
unscientific blanket rule is a failed approach to regulating threatened
species. Restoring it would undermine incentives to recover species.
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\19\ See 88 Fed. Reg. 40,742 (June 22, 2023).
\20\ See 84 Fed. Reg. 44,753, 44,757 (Aug. 27, 2019).
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When Congress enacted the ESA, it intentionally limited the take
prohibition and other Section 9 prohibitions to endangered species. It
did so, according to the bill's Senate floor manager, John Tunney (D-
CA), to ``minimiz[e] the use of the most stringent prohibitions,''
which Congress believed should ``be absolutely enforced only for those
species on the brink of extinction.'' \21\ For threatened species,
Congress gave the Service ``an almost infinite number of options'' to
``facilitate regulations that are tailored to the needs of the
animal.'' \22\ In other words, Congress expected threatened species
regulations to be designed creatively to facilitate recovery.
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\21\ 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).
\22\ See Congressional Research Service, supra n. 21, at 358.
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From 1975 to 2019, however, the Service followed a cookie-cutter
approach. Under the so-called blanket rule, which purported to overrule
Congress' decision to regulate endangered and threatened species
differently,\23\ the Service automatically imposed on threatened
species all of the prohibitions that apply to endangered species.\24\
It could set that rule aside and tailor a rule to the needs of a
particular animal. But, because it was procedurally more burdensome to
craft a tailored rule than reflexively apply the blanket rule, tailored
rules were the rare exception. For 75% of species listed as threatened
during that time, the blanket rule was applied without any analysis of
whether that was best for the species.\25\ Indeed, the blanket rule
caused Service personnel to treat a species' status upgrade as a non-
event, with one official downplaying improvements for the Florida
manatee by asserting that it is a ``misperception'' that endangered and
threatened are distinct classifications.\26\
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\23\ Congress did not give the Service this authority.
Consequently, the blanket rule is and always has been unlawful. See
Jonathan Wood, Take It to the Limit: The Illegal Regulation Prohibiting
the Take of Threatened Species Under the Endangered Species Act, 33
Pace Envtl. L. Rev. 23 (2015). See also PERC, Comment Opposing the
Proposed Reinstatement of the ``Blanket Rule'' Regulating Threatened
Species as if They Were Endangered 11 (Aug. 22, 2023).
\24\ See Field Guide, supra n. 5 at 6-9.
\25\ See 88 Fed. Reg. at 40,744.
\26\ Patricia Sagastume, Reclassifying Florida Manatees: From
Endangered to Threatened, Al Jazeera America (August 8, 2014) (quoting
Patrick Underwood, a U.S. Fish and Wildlife Service spokesman, as
saying ``People have misperceptions that we have two lists. It's one
classification.'').
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This began to change during the Obama administration. It discarded
the blanket rule in favor of tailored rules more than ``nearly every
other presidential administration,'' according to a Defenders of
Wildlife report.\27\
---------------------------------------------------------------------------
\27\ See Ya-Wei Li, Section 4(d) Rules: The Peril and the Promise,
Defenders of Wildlife White Paper 1 (2017).
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PERC's research supported this policy shift because tailored rules
encourage species recovery by aligning the incentives of landowners
with the interests of species.\28\ Regulating threatened species less
stringently than endangered species gives states and landowners a stake
in a species' status. It does so through the promise that recovering
the species to the point that its status can be upgraded will be
rewarded with regulatory relief. Likewise, efforts to prevent a
threatened species' further slide are motivated through the implicit
threat that, if the species is downgraded, it will trigger more
burdensome regulation.
---------------------------------------------------------------------------
\28\ See Field Guide, supra n. 5 at 6-9. See also Road to Recovery,
supra n. 6.
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The Trump administration continued the shift in policy that began
during the Obama administration and formalized it by rescinding the
blanket rule in 2019. It did so to ``incentivize conservation for both
endangered species and threatened species.'' \29\ Consistent with
PERC's research, the Service explained that ``[p]rivate landowners and
other stakeholders may see more of an incentive to work on recovery
actions'' through the promise of ``reduced regulation.'' \30\ Under the
2019 rule, every threatened species listing has been accompanied by a
regulation tailored to the unique needs of that species.
---------------------------------------------------------------------------
\29\ 84 Fed. Reg. at 44,757.
\30\ See id.
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Now, the Service proposes to reverse this decision and reinstate
the blanket rule. Doing so would be a clear loss for species. As
discussed above, few species improved and recovered while it was in
place. In fact, only 29 domestic species progressed enough to be
upgraded from endangered to threatened during the more than 40 years
that the blanket rule was in place.\31\ And, because of the blanket
rule, states and landowners generally saw no reward even in the few
cases where that progress was achieved. It is also notable that the
National Marine Fisheries Service, which has never had a blanket rule,
has done significantly better at recovering species under its care,
achieving a 6.7% recovery rate compared to the Service's 2.5%.\32\
---------------------------------------------------------------------------
\31\ See Missing the Mark, supra n. 3. See also FWS, ECOS:
Reclassified Species, https://ecos.fws.gov/ecp/report/species-
reclassified. During this time, 10 domestic species also declined to
the point that they had to be downgraded from threatened to endangered.
But because there are significantly more species listed as endangered
than threatened, the percentages are basically the same (2.4%
threatened species downgraded to endangered v. 2.2% endangered species
upgraded to threatened). See FWS, ECOS: Reclassified Species.
\32\ See PERC, Comment Opposing the Proposed Reinstatement of the
``Blanket Rule,'' supra n. 23 at 11. Of course, NMFS is responsible for
fewer and different species than the Service, which may explain these
results. But it's alarming that, in proposing to reinstate the blanket
rule, the Service does not even consider NMFS' higher recovery rate or
the role its tailoring of 4(d) rules may play in it. See id.
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Ironically, the Biden administration itself has demonstrated that
restoring the blanket rule would undermine species recovery. In
implementing the 2019 rule, it has considered what regulation would
best promote the conservation of each species it has listed as
threatened. The administration could have imposed endangered-level
regulation for any of them. But it has rejected that approach every
time.\33\ Instead, it has found tailored regulations better for
species.\34\ This is no coincidence. The National Marine Fisheries
Service has found endangered-level regulation conducive to the
conservation of threatened species only 3% of the time.\35\ What this
shows is that the blanket rule is almost never the right solution to
promote the conservation and recovery of species. Yet the Service is
not only proposing to reinstate the blanket rule but also made clear
that it would no longer consider what approach would be best for each
species before applying the blanket rule.\36\
---------------------------------------------------------------------------
\33\ See Field Guide, supra n. 5 at 8. See also 88 Fed. Reg. at
40,744.
\34\ See Field Guide, supra n. 5, at 8.
\35\ See Li, supra n. 26.
\36\ See 88 Fed. Reg. at 40,747 (``If this proposal is finalized, .
. . we will not make necessary and advisable determinations for the use
of those blanket rules in future proposed or final listing rules.'').
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At the same time that it was proposing to restore the blanket rule,
the Biden administration was also committing not to apply it to
reintroduced wildlife populations, which are treated as threatened
under the ESA.\37\ It will not do so, the Service explained, because
``each situation is unique and requires careful consideration of what
prohibitions may be necessary'' to conserve each population.\38\ One-
size-fits-all approaches, the Service continued, do ``not provide the
flexibility that is needed to further the conservation of the
species.'' \39\ Of course, the same is true of threatened species
generally, but the Service has not reconciled these contradictory
positions.
---------------------------------------------------------------------------
\37\ See 88 Fed. Reg. 42,632, 42,645 (July 3, 2023).
\38\ See id.
\39\ See id.
---------------------------------------------------------------------------
Despite the importance of recovery and incentives to the ESA's text
and the 2019 rescission of the blanket rule, the Service ignores those
critical considerations in its proposal. It does not dispute the
earlier determination that tailored rules produce better incentives for
habitat restoration and other proactive recovery efforts. Instead, it
explicitly confirms it.\40\ The Service's notice does not mention
private landowners, much less discuss how the blanket rule would affect
the likelihood that they or states would invest in habitat restoration
or other proactive conservation efforts.\41\ The Service is, instead,
ignoring the most important factors for assessing whether a regulation
is ``necessary and advisable for the conservation,'' i.e. recovery, of
a species. Therefore, the proposed regulations violates the ESA.
---------------------------------------------------------------------------
\40\ 88 Fed. Reg. at 40,747.
\41\ See PERC, Comment Opposing the Proposed Reinstatement of the
``Blanket Rule.'' supra n. 23.
---------------------------------------------------------------------------
Blocking the blanket rule by passing H.R. 5504 and restoring the
ESA's original intent would help improve incentives to recover species.
But that should be the beginning, not the end, of Congress' efforts to
reform how threatened-species regulations are designed and implemented.
To achieve the ESA's purpose, the Service must be nudged to use the
flexibility Congress has given it to tailor regulations more creatively
to improve conservation incentives and put more species on the road to
recovery.
It likely will not do this on its own. Consider the lesser prairie
chicken. When the Service proposed to list a population of that species
as threatened, it proposed a regulation under the 2019 rule that would
strictly regulate ranching. Conservation groups, including PERC,
National Wildlife Federation, and the Nature Conservancy, opposed the
proposed regulation because it would irrationally penalize landowners
who were voluntarily conserving the species' grassland habitat.\42\
Ultimately, the Service revised its proposal in response to this
pushback. But, indicating its resistance to considering such incentives
generally, it also disputed having 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.'' \43\
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\42\ 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).
\43\ See 87 Fed. Reg. 72,674, 72,717 (Nov. 25, 2022).
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A diverse mix of experts and practitioners have urged the more
creative tailoring of threatened-species regulations to support species
conservation and recovery.\44\ A few of those merit specific mention.
Earlier this year, Professor Robert Fischman from Indiana University
appeared as a minority witness before this subcommittee and testified
to the potential for better tailored regulations for threatened species
to promote more conservation.\45\ In a forthcoming book chapter, David
Willms of the National Wildlife Federation proposes a creative way to
use threatened species regulations to facilitate the recovery of
grizzly bear populations and reduce litigation over their future
delistings.\46\ And, in 2017, the Western Governors' Association issued
recommendations for ESA reform including ``greater distinction between
the management of threatened versus endangered species in ESA to allow
for greater management flexibility, including increased state authority
for species listed as threatened.'' \47\
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\44\ See, e.g., Alejandro Camacho, et al., Six Priority
Recommendations for Improving Conservation Under the ESA, 51 Envtl. L.
Rep. 10,785, 10,788, 10,789-90 (2021) (listing better tailoring of 4(d)
rules as a ``key reform'' identified in a dialogue among the
conservation community hosted by UC Irvine School of Law and the
Environmental Policy Innovation Center); Temple Stoellinger, et al.,
Improving Cooper ving Cooperative State and F e State and Federal
Species Conser al Species Conservation Efforts, 20 Wyo. L. Rev. 183,
202-205 (2020) (describing improvements to the design of 4(d) rules as
one of seven reform ideas to receive general agreement in a workshop of
diverse stakeholders).
\45\ See Testimony of Robert L. Fischman Before the Subcommittee on
Water, Wildlife and Fisheries of the House Committee on Natural
Resources, Hearing on Proposed Congressional Joint Resolutions
Disapproving Rules Enacted under the Endangered Species Act (Apr. 18,
2023).
\46\ 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, eds.
Lowell E. Baier, John F. Organ, and Christopher E. Segal (Lanham, MD:
Rowman & Littlefield, forthcoming 2023). See also Brian Yablonski, A
Path Forward for the Grizzly Bear, PERC Reports (Oct. 17, 2023).
\47\ Western Governors' Association, Policy Resolution 2017-11:
Species Conservation and the Endangered Species Act (2017). States and
organizations representing state officials also filed comments opposing
the reinstatement of the blanket rule for these and other reasons. See,
e.g., Nat'l Ass'n of State Foresters, Comment on Proposed ESA Rules
(Aug. 17, 2023); Comment of 18 States Opposing the Proposed Rule (Aug.
21, 2023).
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PERC's contribution to this debate has been to propose that
threatened species regulations be designed as ``roadmaps to recovery''
for each species.\48\ The regulation should set incremental recovery
goals for the species, such as population targets, habitat restoration
objectives, or other metrics, and provide for the extent or stringency
of the regulation to automatically adjust as they are met. For a
species like the grizzly bear, this could mean gradually transferring
authority to the states as populations are reintroduced or rebound,
thereby enabling states to build trust with the conservation community
over their ability to manage the recovering population.\49\ For a
species like the American burying beetle, whose recovery depends on
relocating beetles north in response to climate change, regulation
might recede gradually as habitat is restored in the northern part of
their range and as beetles are relocated from the southern portion.\50\
The key to this strategy is to set clear, objective recovery goals and
provide frequent, incremental rewards (in the form of regulatory
relief) as they are met, thereby encouraging states and private
landowners to invest in habitat restoration and other conservation
efforts.\51\
---------------------------------------------------------------------------
\48\ See Field Guide, supra n. 5 at 18-21.
\49\ See id.
\50\ See PERC, Comment Opposing the Proposed Reinstatement of the
``Blanket Rule'', supra n. 23 at 7.
\51\ See Field Guide, supra n. 5 at 18-21.
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Beyond promoting species recoveries, the roadmaps to recovery
approach would also help give effect to recovery plans, empower states
to take the lead on recovery, and reduce the stakes of listing
decisions.\52\ These are critical because, currently, recovery plans
have no binding effect and little progress has been made under them,
states have been sidelined from their intended role in managing and
recovering wildlife under the ESA, and persistent litigation has kept
species on the list years past the point that they biologically
recovered.\53\ Although the Service already has the authority to use
these innovative approaches, it is apparent that additional nudging
from Congress will be required to make it seize those opportunities and
recover more species.
---------------------------------------------------------------------------
\52\ See id.
\53\ See id.
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The Conservation Costs of Poorly Conceived Critical Habitat
Designations
The Service, along with the National Marine Fisheries Service, has
also proposed changes to the critical habitat process that will stoke
conflict while doing nothing to promote conservation. Limited habitat
is one of the major threats causing species to be endangered or
threatened. Therefore, conserving existing habitat and restoring
additional habitat are critical to recover species. But the main
provision of the ESA targeting habitat, the critical habitat provision,
is an imperfect tool for these purposes. Indeed, Martha Williams, the
Director of the Fish and Wildlife Service, has observed, in an article
co-authored with other former Obama administration officials, that
critical habitat designations ``have very little impact'' from a
``conservation perspective.'' \54\
---------------------------------------------------------------------------
\54\ 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).
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This is because designating land as critical habitat does not
necessarily extend any sort of regulatory protection to habitat
features on that land. Instead, a critical habitat designation only
affects the use of designated land if that use happens to receive
federal funding or require a federal permit, such as a ``dredge and
fill'' permit under the Clean Water Act.\55\ Otherwise, the landowner
is as free to degrade or destroy habitat features after a designation
as she was before.
---------------------------------------------------------------------------
\55\ See Field Guide, supra n. 5 at 22-25. See also Wood & Watkins,
supra n. 6.
---------------------------------------------------------------------------
Although a critical habitat designation does not necessarily mean a
landowner's property will be regulated, a designation still affects
them. Studies show that designations immediately and significantly
reduce the value of designated land.\56\ According to one study, for
instance, critical habitat for the bay checkerspot butterfly reduced
the value of undeveloped land by 78%.\57\ This is because critical
habitat designations have a ``stigma effect.'' If a buyer were
considering similar properties, one of which was designated, she would
discount the amount she would pay for the designated property to
reflect potential regulatory consequences in the future.\58\
---------------------------------------------------------------------------
\56\ See Field Guide, supra n. 5 at 22-25.
\57\ Maximillian Aufhammer et al., The Economic Impact of Critical-
Habitat Designation: Evidence from Vacant-Land Transactions, 96 Land
Econ. 188 (2020).
\58\ See Wood & Watkins, supra n. 6.
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To mitigate this risk, landowners may be perversely encouraged to
preemptively destroy habitat features on their land.\59\ One study of
the critical habitat designation for a pygmy owl in Arizona, for
instance, found that parcels proposed for designation were developed
faster than equivalent tracts outside of it.\60\ This is a serious
problem because 80% of listed species rely on private land, most of
them for the majority of their habitat.\61\
---------------------------------------------------------------------------
\59\ See id.
\60\ John A. List, Michael Margolis, & Daniel E. Osgood, Is the
Endangered Species Act Endangering Species?, NBER Working Paper 12777
(2006).
\61\ Fish and Wildlife Service, Our Endangered Species Program and
How It Works with Landowners (2009) (estimating that private landowners
provide 80% of habitat for listed species).
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Because critical habitat designations harm landowners but do not
necessarily benefit species, it is critical that they be done carefully
and with the incentives of landowners in mind. However, this has often
not been the case. For the dusky gopher frog, for instance, the Service
designated 1,500 acres of private land in Louisiana as critical habitat
despite the land lacking the habitat features the frog needs to
thrive.\62\ The land would aid the frog's recovery only if the existing
forest were chopped down and replaced with a different forest type, if
the property were regularly burned to limit understory growth, if an
ephemeral pond were managed for the frog's benefit, and if frogs were
introduced.\63\ Based on the Nature Conservancy's efforts to restore
dusky gopher frog habitat on its own property in Mississippi, this
would be an incredibly difficult and expensive undertaking.\64\ But the
designation provided no incentive for the landowner to do any of these
things; instead, it alienated them and provoked a conflict that ensured
these recovery efforts would never occur.\65\
---------------------------------------------------------------------------
\62\ See Wood & Watkins, supra n. 5.
\63\ See id.
\64\ See id.
\65\ See Weyerhaeuser Co. v. U.S. Fish and Wildlife Serv., 139 S.
Ct. 361, 368-69 (2018). Prior to my work at PERC, I was one of the
attorneys that represented the private landowners before the Supreme
Court.
---------------------------------------------------------------------------
Currently, whenever land that is not occupied by a species is
considered for critical habitat, regulations require a determination
that ``the area will contribute to the conservation of the species.''
\66\ This means that the Service must consider how the designation will
affect the likelihood that any existing habitat features on the
property will be conserved or if habitat features will be restored.
This is a critical consideration that determines whether a designation
will help or hinder a species' recovery. Unfortunately, the Service
recently proposed to eliminate this requirement. Worse, it offered no
explanation for this proposal. Instead, its explanation focuses
exclusively on other proposed changes to the regulation containing this
requirement.\67\ The inevitable consequence of this proposal, if it is
finalized, will be designations that undermine habitat conservation and
restoration by alienating landowner partners and by creating perverse
incentives.
---------------------------------------------------------------------------
\66\ See 88 Fed. Reg. 40,764, 40,769 (June 22, 2023).
\67\ See id. at 40,769-70 (discussing the removal of a requirement
that unoccupied lands contain habitat features).
---------------------------------------------------------------------------
For that reason, PERC's research recommends reforming the ESA's
critical habitat provisions to explicitly require consideration not
only of economic costs, as is currently required, but also the
``conservation costs'' of designations, such as where designations
discourage landowners from conserving or restoring habitat.\68\ In
practice, this would mean that the Service would prioritize the
designation of federal land over private land, as it has repeatedly
acknowledged is more effective.\69\ It would also mean that land
occupied by a species would continue to be prioritized over unoccupied
lands.\70\ And it likely means that lands currently unsuitable for a
species would virtually never be designated.\71\
---------------------------------------------------------------------------
\68\ See Field Guide, supra n. 5 at 25.
\69\ See id. See also 81 Fed. Reg. 7,226, 7,231 (Feb. 11, 2016)
(citing ``the unique obligations that Congress imposed for Federal
agencies in conserving endangered and threatened species'' as reason
to, ``[t]o the extent possible, . . . focus designation of critical
habitat on Federal lands'').
\70\ See Wood & Watkins, supra n. 6. See also Environmental Policy
Innovation Center, Endangered Species Act: 2018 Administrative Reform 7
(2018) (finding that unoccupied land constituted only 1% of lands
designated as critical habitat in the previous decade).
\71\ See Field Guide, supra n. 5 at 25.
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That last point might surprise. If restoring habitat is essential
to recover species, why shouldn't critical habitat designations
encompass areas where that restoration could occur? Based on this sort
of reasoning, the Service has proposed to eliminate a requirement that
unoccupied lands have one or more of the physical or biological
features essential to a species' conservation.\72\ But designating land
that could be restored as habitat does not mean that it will be.
Instead, the opposite is more likely. It is likely that the designation
would not affect the landowners' ability to ensure that the land never
becomes habitat for the species. Even if a federal permit might be
required to use the property, constitutional limits would forbid the
government from conditioning that permit on creating habitat.\73\ For
this reason, the Supreme Court long ago recognized that the ESA's land
acquisition authority, rather than critical habitat provisions, are the
proper tool for conserving ``land that is not yet but may in the future
become habitat for an endangered or threatened species.'' \74\
---------------------------------------------------------------------------
\72\ See 88 Fed. Reg. at 40,769.
\73\ See Wood & Watkins, supra n. 6 at 10,571. To its credit, the
Service acknowledges this fact. See 88 Fed. Reg. 31,000, 31,001 (May
15, 2023) (discussing Koontz, Dolan, and Nollan).
\74\ Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515
U.S. 687, 703 (1995).
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Avoiding counterproductive critical habitat designations by
blocking these proposals is an important step. But, again, it won't be
enough to spur habitat restoration at the scale needed to recover
species. Additional reforms are needed to encourage this effort.
According to PERC's research, the best way to encourage habitat
restoration is for conservation organizations, states, and the federal
government to provide incentives to landowners for voluntarily
undertaking this critical work.\75\ Where restored habitat also
provides other services, such as a wetland that supports wildlife but
also improves water quality, existing regulatory programs can be
improved to directly reward the restoration of those features.\76\
Ultimately, we must heed Aldo Leopold's admonition that ``Conservation
will ultimately boil down to rewarding the private landowner who
conserves the public interest.''
---------------------------------------------------------------------------
\75\ See Field Guide, supra n. 5. at 25.
\76\ See id.
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Incentives Matter for Conservation
After 50 years, the ESA has achieved significant accomplishments,
including avoiding the extinction of dozens or hundreds of species.\77\
But we are falling far behind in achieving its ultimate goal of
recovering species, with only 3% of species achieving this goal and a
similarly small proportion making progress toward it. We must do
better.
---------------------------------------------------------------------------
\77\ Noah Greenwald, et al., Extinction and the U.S. Endangered
Species Act, PeerJ (2019) (estimating that as many as 291 extinctions
have been avoided due to the ESA, but relying on assumptions that make
this more of an upper bound than reliable estimate). See Testimony of
Jonathan Wood to the U.S. House Natural Resources Committee,
Subcommittee on Water, Wildlife, and Fisheries, Hearing on the
Endangered Species Act at 50, 2-3 (July 18, 2023).
---------------------------------------------------------------------------
I encourage the members of this Committee to consider the dozens of
recovery-focused reforms in PERC's Field Guide for Wildlife Recovery.
In addition to improving regulations for threatened species and
critical habitat, we explore how to address the large number of listed
species that have no recovery plan and the limited progress in
implementing plans for the species that have them.\78\ We also discuss
how to free up the Service to make science-based listing and delisting
decisions by addressing the litigation that too often interferes with
those decisions.\79\ We propose restoring states to the role Congress
originally intended, including taking the lead on implementing recovery
actions and permitting.\80\ We urge more populations to be established
by reintroduction, while making those populations an asset to
neighboring landowners and communities rather than a liability.\81\ We
analyze how agencies can be encouraged to use their authorities to
advance the recovery of species, rather than the ESA being an obstacle
to their work.\82\ And, finally, we call for permitting reform so that
landowners and conservation groups will face fewer obstacles to habitat
restoration and on-the-ground conservation work.
---------------------------------------------------------------------------
\78\ See Field Guide, supra n. 5 at 10-12.
\79\ See id. at 13-17.
\80\ See id. at 26-29.
\81\ See id. at 30-33.
\82\ See id. at 38-41.
---------------------------------------------------------------------------
The motivation for all of these ideas is to recover more species
without sacrificing the ESA's effectiveness at preventing extinction.
This is precisely what the ESA is intended to do. We do America's
wildlife a disservice by refusing to consider what the act does well
and does not do well. It is not enough to simply state that the ESA is
on time and on target in the face of the overwhelming evidence to the
contrary. We can do better. With better policies and implementation we
can deliver better results for species and landowners alike.
*****
APPENDIX
KEY FACTS & STATISTICS:
Lack of Progress in Recovering Species
There are 2388 listed species, 1690 of which are in the
United States.
99% of listed species persist to this day, as many as 291
extinctions may have been avoided.
However, only 3% of species have recovered.
The Service predicted 300 species to recover by now but
only 11 of those species have (4%).
As of 2017, only 4% of listed species were even improving.
80% of listed species depend on proactive conservation
effort to survive.
1/3 of species have no recovery plans.
For species listed 30 or more years, only 10% of the
actions identified in their recovery plan have been
completed or partially completed.
A Blanket 4(d) Rule Would Undermine Recovery Incentives
While the prior blanket rule was in place, only 29 species
improved from endangered to threatened. The percentage of
endangered species upgraded to threatened is essentially
the same as those that were downgraded from threatened to
endangered. (2.2% v. 2.4%).
The National Marine Fisheries Service, which has never had
a blanket rule, has achieved a recovery rate of 6.7%
compared to the Fish and Wildlife Service's 2.5%.
When the blanket rule was in place, the Service
reflexively stuck with its approach for 75% of species. Now
that it is considering what approach is best for each
species, that has plummeted to 0% for threatened animals.
NMFS, which has never had a blanket rule, has found it
appropriate to impose endangered-level regulation for
threatened species only 3% of the time.
Incentives for Habitat Restoration
Habitat loss is the leading threat to listed species.
Private land provides habitat for 2/3rds of listed
species.
Private land provides 80%+ of the habitat for half of
listed species.
Critical habitat designations have lowered the value of
designated land by as much as 78%.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Questions Submitted for the Record to Jonathan Wood, Vice President of
Law and Policy, Property and Environment Research Center (PERC)
Questions Submitted by Representative Newhouse
Question 1. Mr. Wood, you discuss in your testimony the issues
surrounding critical habitat designations. Could you speak in a little
more detail about how the service's proposal to expand the critical
habitat definition is counterproductive to the intent of the ESA when
it comes to such designations?
Question 2. Mr. Wood, you mentioned this in your testimony and I
believe its very important to reiterate that tailored recommendations
for species are proven to work better than blanket recommendations.
Although we have touched on it, I believe it might be important for my
other colleagues to hear again how destructive it could be for this
administration to bring back the blanket 4(d) rule, which was a rule
that discarded in the Obama administration.
Answers.
Thank you again for the invitation to testify before the
subcommittee in support of H.R. 5504. Thank you also for sharing the
questions for the record from Congressman Newhouse on how the proposed
blanket 4(d) rule and critical habitat regulations undermine the
Endangered Species Act's goal of recovering species. My responses to
these questions are below.
How Critical Habitat Designations Can Discourage Habitat Conservation
and Restoration
One of the biggest causes of species decline and challenges to
species recovery is loss of suitable habitat. For many species,
recovery is simply not possible without significant, proactive efforts
to maintain existing habitat and restore habitat where it has been lost
or degraded. This is especially true for species threatened by climate
change. However, critical habitat designations have ``very little
impact'' from a ``conservation perspective.'' \1\ Worse, designations
can discourage the maintenance and restoration of habitat features by
dramatically lowering the value of lands containing these features.\2\
---------------------------------------------------------------------------
\1\ 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).
\2\ Maximillian Aufhammer et al., The Economic Impact of Critical-
Habitat Designation: Evidence from Vacant-Land Transactions, 96 Land
Econ. 188 (2020).
---------------------------------------------------------------------------
Consider, for instance, the recent critical habitat designation for
the black pinesnake, which included 30,000 acres of private land in
Clarke County, Alabama owned by the Skipper family.\3\ There is scant
evidence that the species is present on the Skippers land. Instead, the
land appears to have been chosen for designation because it is within a
state Wildlife Management Area (WMA). In Alabama, WMAs are voluntarily
established by landowners to partner with the state on conservation
projects and allow public recreation. By focusing on the WMA, the
critical habitat designation penalized the Skipper family for their
participation in this voluntary conservation program.
---------------------------------------------------------------------------
\3\ See Tate Watkins, Conservation and Punishment, PERC Reports
(2023).
---------------------------------------------------------------------------
The decision is surprising because the Service concluded in its
economic analysis that the designation would not lead to any on-the-
ground benefit to the snake.\4\ On the other hand, it acknowledged the
designation would harm landowners, although it was unsure how much. It
estimated that the Skippers and other landowners could lose up to $100
million in value, but stressed this is an upper bound rather than a
precise estimate.\5\ It is questionable, at least, whether the Service
should impose a designation that could produce immense costs for no
direct conservation benefit under a statute that requires the agency to
weigh costs and benefits.
---------------------------------------------------------------------------
\4\ See Memo from Industrial Economics to the U.S. Fish & Wildlife
Serv., re: Screening Analysis of the Likely Economic Impacts of
Critical Habitat Designation for the Black Pinesnake 22 (Oct. 22,
2014).
\5\ See id. at 20.
---------------------------------------------------------------------------
But the most concerning aspect is that the Service ignored how
these costs may affect the incentives of landowners to conserve and
restore habitat. Fearing additional punishments for their conservation
activities, the Skippers promptly withdrew the land from the WMA
program. ``No good deed goes unpunished,'' Gray Skipper told my PERC
colleague in an interview.\6\ Ultimately, the effect of the designation
of the Skipper's land has been less conservation, not more. But this
problem is not limited to the Skippers. According to Scott Jones, CEO
of the Forest Landowners Association, the designation ``put a target on
longleaf pine'' that only ``makes landowners want to remove longleaf
pine habitat.'' \7\
---------------------------------------------------------------------------
\6\ See Watkins, supra n. 3..
\7\ See id.
---------------------------------------------------------------------------
Recovering species means working with conservation-minded
landowners like the Skippers, not penalizing them. Yet, too often,
critical habitat designations harm landowners who conserve habitat
while providing no reward to landowners willing to maintain or restore
it.
How the Blanket 4(d) Rule Undermines Incentives to Recover Species
Similarly, the proposal to restore the so-called blanket 4(d) rule
is an idea that seems like it should help species but would actually
thwart their recovery. And, again, the reason is incentives. When
regulations become less stringent as species recover, states and
landowners have an incentive to work toward that result.\8\ When
endangered and threatened species are regulated the same, states and
landowners are made indifferent to a species status and whether it is
improving or declining. The dismal percentage of species that have
recovered \9\--or even improved \10\--during the decades that the
blanket 4(d) rule was previously in place is powerful evidence that it
doesn't work. This is part of the reason that one of the few policy
agreements between the Obama administration and Trump administration
was to move away from the blanket 4(d) rule in favor of rules tailored
to the unique needs of each species.
---------------------------------------------------------------------------
\8\ See Jonathan Wood, Restore the Two-Step Process in A Field
Guide for Wildlife Recovery: The Endangered Species Act's Elusive
Search to Recover Species--and What to Do About It, PERC (2023).
\9\ Katherine Wright & Shawn Regan, Missing the Mark: How the
Endangered Species Act Falls Short of Its Own Recovery Goals, PERC
(2023).
\10\ Department of the Interior, 2017/2018 Annual Performance Plan
& 2016 Report 15 (May 26, 2017).
---------------------------------------------------------------------------
A few examples demonstrate the problems with the blanket 4(d) rule.
In the 1970s, Florida's manatee population was down to just a few
hundred, leading to its listing as endangered. The species' popularity
spurred the state, landowners, and conservationists to invest in
proactive habitat conservation and restoration.\11\ Save Crystal River,
a local conservation nonprofit, has spent years restoring more than 800
natural warm-water springs gummed up by algae and sediment, planting
sea grass, and removing phosphorus to improve water quality. These and
other investments have paid off. The population has grown to nearly
8,000 and expanded into more of its historical range on the East and
Gulf Coasts.
---------------------------------------------------------------------------
\11\ See Restore the Two-Step Process, supra n. 8.
---------------------------------------------------------------------------
To reward its recovery efforts, Save Crystal River petitioned the
Service to upgrade the manatee to threatened, which it did in 2017.
While this seemed like a cause for celebration, the service quickly
doused such hopes. Because the blanket 4(d) rule was in place at the
time, there would be no change in regulation to reward those like Save
Crystal River that had made the upgrade possible. One Service spokesman
even dismissed as a ``misperception'' that endangered and threatened
are distinct classifications.\12\ Now that new threats to the manatee
have arisen, states and landowners have nothing to lose if it is
downgraded to endangered once again, since that status change will also
result in no change in regulation of the species.
---------------------------------------------------------------------------
\12\ Patricia Sagastume, Reclassifying Florida Manatees: From
Endangered to Threatened, Al Jazeera America (Aug. 8, 2014).
---------------------------------------------------------------------------
The biggest impact of the blanket 4(d) rule, however, is likely
felt by the endangered species that never recover to the point that
they can be upgraded to threatened, since states and landowners are not
encouraged to work toward that result. Consider, for instance, the
plight of the Pacific pocket mouse. Listed as endangered in 1994, the
Service issued a recovery plan in 1998 establishing several criteria
for upgrading the species to threatened, including increasing the
number of populations from 3 to 10 as well as a fivefold increase in
occupied habitat.\13\ The Service predicted these goals could be met
this year. Unfortunately, the species has made little progress in the
last 25 years. According to a 2020 status review, there remained only
three populations and the area of occupied habitat may have shrunk.\14\
If landowners in the area were assured that their efforts to restore
habitat and recover the species would be rewarded, rather than
dismissed as in the manatee case, perhaps the mouse would actually be
on the road to recovery, rather than remaining stuck for decades on the
precipice of extinction.
---------------------------------------------------------------------------
\13\ U.S. Fish & Wildlife Serv., Recovery Plan for the Pacific
Pocket Mouse (1998).
\14\ U.S. Fish & Wildlife Serv., 5-Year Review: Pacific Pocket
Mouse (2020).
---------------------------------------------------------------------------
Finally, it's worth noting that the Service did not dispute any of
this in its proposal to restore the blanket 4(d) rule. It didn't, for
instance, find that its earlier determination--that ``private
landowners and other stakeholders may see more of an incentive to work
on recovery actions'' without a blanket 4(d) rule \15\--was in error.
Indeed, the proposal ignores incentives and the critical role private
landowners (who are nowhere even mentioned in the proposal) play in
conserving and recovering species. And the Service makes clear that, if
the blanket rule is reinstated, it will no longer consider what's best
for each species before applying it.
---------------------------------------------------------------------------
\15\ 84 Fed. Reg. at 44,757.
---------------------------------------------------------------------------
______
Mr. Bentz. Thank you.
The Chair recognizes Dr. Alex Loureiro, Scientific Director
at EnerGeo Alliance in Houston, Texas.
Doctor, you are recognized for 5 minutes.
STATEMENT OF ALEX LOUREIRO, SCIENTIFIC DIRECTOR, ENERGEO
ALLIANCE, HOUSTON, TEXAS
Dr. Loureiro. Chairman Bentz, Ranking Member Huffman, and
members of the Subcommittee. My name is Alex Loureiro, and I am
the Scientific Director for the EnerGeo Alliance, the global
trade association for geoscience companies, innovators, and
energy developers who use Earth science to discover, develop,
and deliver energy sustainability to the world.
I appreciate the opportunity to testify today regarding the
scientific deficiencies contained within the National Marine
Fisheries Service's proposal to designate Rice's whale critical
habitat, and the Alliance's strong support for H.R. 6008.
To be clear, my objective today is not to argue that Rice's
whales do not merit protection. Quite the opposite. Rather, my
concern is that the proposed rule to designate critical habitat
and the stipulated agreement and associated notice to lessees
fail to rely on the best available science, are unlikely to
provide additional protection to Rice's whales, and may
contribute to unintended deleterious consequences.
The Rice's whale was designated as endangered based on
risks to its habitat due to anthropogenic activity and climate
change. It should be noted that, unlike the North Atlantic
right whale, the Rice's whale population has not shown any
indication of decline. The population is currently estimated at
51 individuals. NMFS has proposed to designate an area of
28,000 square miles as critical habitat, asserting that all are
occupied. This equates to an area of about eight times the size
of Washington, DC for each individual animal, assuming the
animals are distributed uniformly, and we know they are not.
Rice's whale detections during industry operations are
quite rare. Historical observations by protected species
observers from 2010 to 2014 resulted in only 13 documented
detections, and 9 were conclusively ruled not to be Rice's
whales. This is about a 70 percent detection error rate.
A separate data set reported 15 unconfirmed detections in
over 194,000 hours of observer effort. Even if we assume that
all of these detections were in fact Rice's whales, this would
require nearly a year and a half of 24/7 observer effort in
order to encounter a single animal.
By comparison, the detection rate for all other protected
species combined is about one sighting every 2 days. In 2022, a
group at the NMFS Southeast Fisheries Science Center conducted
a study to detect Rice's whale vocalizations using Passive
Acoustic Monitoring, or PAM, along the shelf edge.
[Slide.]
Dr. Loureiro. You will note two sites on this map indicate
no Rice's whale detections with open circles on the map. The
hydrophone at site EP failed. The hydrophone at the Grand Isle
site, indicated as GI, recorded zero calls in over 9,000 hours
of data. The assumption that these animals are regularly moving
between the eastern and western Gulf of Mexico along the shelf
edge when not a single call was detected in over a year of
recording seems highly implausible.
This single flawed study is the linchpin of the BOEM notice
to lessees and operators. Even if the results were clear, using
a single study as the basis for sweeping changes across an
entire industry is insufficient.
The biological opinion RPA describes protective measures to
be applied in the DeSoto Canyon including speed restrictions,
avoiding transit during low visibility, and maintaining
separation from Rice's whales. These measures are appropriate,
given the risk of ship strikes and the high concentration of
animals in the DeSoto Canyon. Applying these measures outside
of the DeSoto Canyon, as detailed in the NTL, would not only
provide no tangible benefit to the species, but would lead to
increased time in the water.
Given that the historical detection rate for other
protected species is one sighting every 2 days, it is not
difficult to see that application of these arbitrary measures
across the entire shelf edge to protect Rice's whales, which
are exceedingly rare outside of the DeSoto Canyon, would
increase the likelihood of interacting with other protected
species by keeping vessels at sea longer.
I will note that the highest detection rates outside of the
DeSoto Canyon occurred at site WF, the western-most site, and
those detection rates were 34 times lower than detection rates
in the DeSoto Canyon.
Further still, increasing operational duration will
increase environmental emissions, ultimately leading to even
more broad-scale climate effects.
The proposed rule and, therefore, stipulated agreement and
NTL are not based upon the best available science. In my
opinion, compliance with the BiOp RPA ensures strong protection
for the Rice's whale in the area where it is known to be most
densely concentrated. Settling for an unscientific, overly
broad critical habitat designation ultimately limits our
ability to provide appropriate protection to individuals and
the population.
The EnerGeo Alliance strongly supports H.R. 6008.
Thank you for the opportunity to testify today, and I look
forward to your questions. I yield the remainder of my time.
[The prepared statement of Dr. Loureiro follows:]
Prepared Statement of Alexandria E. Loureiro, PhD, Scientific Director,
EnerGeo Alliance
on H.R. 6008
Chairman Bentz, Ranking Member Huffman, and Members of the
Subcommittee:
For the record, my name is Alex Loureiro and I am the Scientific
Director for the EnerGeo Alliance. I hold an MS and PhD in marine
biology from Texas A&M University at Galveston, and a BS in marine
science and biology from the University of Miami. My prior research
experience focuses on marine mammal behavior both in the laboratory and
in field, and large-scale fisheries in the U.S. Gulf of Mexico. At
EnerGeo, I work closely with our members, regulators, and other
stakeholders around the world to ensure that energy resources are
identified and developed in an environmentally sustainable manner. I
head the Gulf of Mexico Proactive Regulatory and Observational Program,
an EnerGeo program that supports industry Marine Mammal Protection Act
compliance under the existing Gulf of Mexico Incidental Take
Regulation, and collects key marine mammal protection data. I have led
the development of numerous industry guidance documents, including best
practices for environmental impact assessments for seismic surveys and
guidance for geophysical survey crews to safely assist entangled
wildlife encountered during operations. I am actively engaged in
supporting research pertaining to the potential effects of industry
operations, and provide input into ongoing member and government
initiatives worldwide. Further, I participated as an expert in the 2021
workshops to inform recovery planning for the Rice's whale.
I present this testimony on behalf of the EnerGeo Alliance. Founded
in 1971 as the International Association of Geophysical Contractors
(IAGC), the EnerGeo Alliance is a global trade association for the
energy geoscience industry, the intersection where earth science and
energy meet. Providing solutions to revolutionize the energy evolution,
the EnerGeo Alliance and its member companies span more than 50
countries, representing onshore and offshore survey operators and
acquisition companies, energy data and processing providers, energy
companies, equipment and software manufacturers, industry suppliers,
service providers, and consultancies. Together, our member companies
are the gateway to the safe discovery, development, and delivery of
mainstay sources of energy, alternative energy, and low-carbon energy
solutions that meet our growing world's needs.
Through reliable science- and data-based regulatory advocacy,
credible resources and expertise, and future-focused leadership, the
EnerGeo Alliance continuously works to develop and promote informed
government policies that advance responsible energy exploration,
production, and operations. As the global energy demand evolves, we
believe that all policymakers and energy companies, providing mainstay,
alternative, and low-carbon solutions,--should have access to reliable
data and analysis to support their forward moving efforts.
I appreciate the opportunity to testify before the Subcommittee on
Water, Wildlife and Fisheries regarding the scientific deficiencies
contained within the National Marine Fisheries Service's (NMFS)
proposal to designate Rice's whale (Balaenoptera ricei) critical
habitat in the Gulf of Mexico (GOMx) (``Proposed Rule''),\1\ and the
bill to prohibit implementation of the Stipulated Agreement to Stay
Proceedings and the associated Notice to Lessees until such time as the
Assistant Administrator issues a final rule for Rice's whale critical
habitat, finalizes the revision of the rule titled, ``Taking and
Importing Marine Mammals; Taking Marine Mammals Incidental to
Geophysical Surveys in the Gulf of Mexico'' \2\ to correct take
estimation errors, and enters into an agreement to conduct a study on
the occurrence and range of Rice's whales throughout the GOMx.
---------------------------------------------------------------------------
\1\ Endangered and Threatened Species; Designation of Critical
Habitat for the Rice's Whale, 88 Fed. Reg. 47,453 (July 24, 2023)
(proposing to add 50 C.F.R. Sec. 226.230 designating critical habitat
for Rice's whale). NMFS extended the period to submit comments on the
Proposed Rule to October 6, 2023. Endangered and Threatened Wildlife
and Plants; Designation of Critical Habitat for the Rice's Whale,
Public Hearing and Extension of Public Comment Period, 88 Fed. Reg.
62,522 (Sept. 12, 2023).
\2\ 88 Fed. Reg. 916.
---------------------------------------------------------------------------
The Proposed Rule was released for pre-publication in the Federal
Register at 8:45am on July 21, 2023, just hours before the announcement
that the environmental non-governmental organizations and the U.S.
federal government reached a private settlement agreement in Sierra
Club et al. v. NMFS et al., Case No. 8:20-cv-03060-PX, to settle
litigation via the Stipulated Agreement to Stay Proceedings (Stipulated
Agreement) challenging an Endangered Species Act Biological Opinion
(BiOp) addressing all oil and gas activities in the GOMx. In that
settlement, the Bureau of Ocean Energy Management (BOEM)--not even a
party to the lawsuit--purported to agree to exclude the same area
proposed for critical habitat designation from future oil and gas lease
sales. It is difficult to not find this timing suspicious.
It is important to understand the history of Rice's whale
scientific literature in the GOMx in order to properly evaluate the
Proposed Rule. The Rice's whale was first designated a new species in
2021.\3\ Previously, these animals were considered a GOMx subspecies of
Bryde's whales. The Rice's whale is considered endangered based on
risks to its current habitat, related to anthropogenic activity and
climate change.\4\ There is no evidence to indicate that the population
is declining, nor that animals are vulnerable to an acute anthropogenic
threat.
---------------------------------------------------------------------------
\3\ Rosel, P.E., L.A. Wilcox, T. K. Yamada, and K. D. Mullin.
(2021). A new species of baleen whale (Balenoptera) from the Gulf of
Mexico, with a review of its geographic distribution. Marine Mammal
Science 37:577-610.
\4\ Endangered and Threatened Wildlife and Plants: Notice of 12-
Month Finding on a Petition To List the Gulf of Mexico Bryde's Whale as
Endangered Under the Endangered Species Act (ESA), 80 Fed. Reg. 18343
(December 8, 2016).
---------------------------------------------------------------------------
NMFS has proposed to designated over 28,000 square miles of the
GOMx continental shelf and slope as critical habitat, and asserts all
are ``occupied'' by Rice's whales.\5\ The most recent Stock Assessment
Report (SAR) published by NMFS places the Rice's whale population in
the GOMx at 51 individuals.\6\ This equates to an area of about 550
square miles--about eight times the size of Washington, D.C.--for each
individual animal, assuming the animals are uniformly distributed.
However, historical detections, both visual and acoustic, are largely
concentrated to the De Soto Canyon area in the northeastern GOMx,
leaving an even broader swath of the designated habitat likely devoid
of animals.
---------------------------------------------------------------------------
\5\ 88 Fed. Reg. at 47,455; id. at 47,460.
\6\ Hayes, S.A., et al. 2023. U.S. Atlantic and Gulf of Mexico
Marine Mammal Stock Assessments 2022. NOAA Tech. Mem. NMFS-NE-304.
---------------------------------------------------------------------------
Indeed, Rice's whale detections are quite rare. In producing the
new species designation, Rosel et al. (2021) described the Rice's whale
detections in the GOMx between 1989-2019.\7\ As part of this
assessment, experts reviewed detection records from Protected Species
Observers (PSOs) aboard seismic survey vessels in the western GOM
between 2010-2014. Thirteen detections were recorded that may have been
Rice's (then Bryde's) whales. Of these 13 sightings, nine were
conclusively ruled out, and four could not be confirmed or definitively
disproven. Two of these four had photographs indicating a baleen whale,
but it was unclear whether the animal was a Rice's whale or sei whale.
---------------------------------------------------------------------------
\7\ Rosel, P. E., L. A. Wilcox, T. K. Yamada, and K. D. Mullin.
(2021). A new species of baleen whale (Balenoptera) from the Gulf of
Mexico, with a review of its geographic distribution. Marine Mammal
Science 37:577-610.
---------------------------------------------------------------------------
Between 2002-2008, 15 unconfirmed Rice's whale detections were
reported by PSOs aboard seismic vessels in the western GOM.\8\ In
total, 194,273 total hours of observer effort were necessary to produce
these 15 unconfirmed detections. Even if all 15 were indeed Rice's
whales (an assumption which seems improbable given the about 70%
misidentification rate in the 2010-2014 analysis), this would still
mean a Rice's whale was detected only once every 12,951 hours. That is,
it would take nearly a year and a half of 24-hour observer effort days
to encounter a single animal in areas where seismic operations occurred
during this time--without even accounting for the likelihood that many,
perhaps most, of these detections are not Rice's whales. If the 70%
error rate from the prior dataset is applied, that figure approaches
five years of round-the-clock effort for a single detection by PSOs.
While it is possible that animals may avoid active seismic survey
operations, it should be noted that the detection rate for all other
protected species combined from this dataset was 20.15 sightings per
1,000 hours of observation--that is, one encounter about every 50
hours. Comparatively, Rice's whale detections in the western GOMx are
vanishingly rare.
---------------------------------------------------------------------------
\8\ Barkaszi, M. J., M. Butler, R. Compton, A. Unietis, and B.
Bennet. (2012). Seismic survey mitigation measures and marine mammal
observer reports. OCS Study BOEM 2015-015. U.S. Department of the
Interior, Bureau of Ocean Energy Management, Gulf of Mexico OCS Region,
New Orleans, LA.
---------------------------------------------------------------------------
In 2015, a density model was developed based on 25 Rice's whale
(then GOMx Bryde's whale) detections. Of these 25, 17 were definitively
Rice's whales and located in the De Soto Canyon; the remaining eight
outside of the De Soto area were inconclusive and may or may not have
been Rice's whales. All but two of these detections occurred within the
De Soto Canyon.\9\ With little additional information and a need for a
density model for the purposes of NMFS's calculating marine mammal
takes under the MMPA, the authors examined all 25 detections (even
though only 17 were confirmed). The two western GOMx detections were
ultimately excluded by the authors, given that at the time of drafting
no Rice's whales had been detected in the western GOMx in over 20
years. From the 23 detections used, the authors developed a GOMx-wide
model for Rice's whale distribution based only on two factors:
geographic coordinates of the detections and water depth. The resultant
model indicates a high concentration of Rice's whales in the eastern
GOM, with very low densities along the central GOM shelf edge (see
Figure 1).\10\ It should be noted as well that the breaks in the scale
of the density map are logarithmic. From this map, it is clear that the
model suggests a high concentration of Rice's whales in the De Soto
area, fewer along the shelf edge towards the Mississippi, and a
precipitous drop along the shelf edge westward. (The ``<0.0010''
throughout the GOMx indicates that the animals are not physically
constrained to the shelf edge, but are extremely unlikely to venture
into shallower or deeper waters.)
---------------------------------------------------------------------------
\9\ Roberts, J.J., B.D. Best, L. Mannocci, E. Fujioka, P.N. Halpin,
D.L. Palka, L.P. Garrison, K.D. Mullin, T.V.N. Cole, C.B. Khan, W.M.
McLennan, D.A. Pabst, and G.G. Lockhart. (2015). Density Model for
Bryde's Whale (Balaenoptera edeni) for the U.S. Gulf of Mexico Version
3.1, 2015-11-06, and Supplementary Report. Marine Geospatial Ecology
Lab, Duke University, Durham, North Carolina.
\10\ Roberts et al. (2015).
Figure 1
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
This model also does not account for the unique oceanographic
features present in the De Soto Canyon area that may make this region
the species' preferred habitat. This area serves as an important
upwelling site due to the physical habitat characteristics, making
nutrients available to organisms.\11\ This nutrient availability
increases biotic productivity. Due to its physical structure and
location relative to important water masses in the GOM, this geologic
feature creates a unique environment in its immediate area.\12\ These
features do not exist in tandem across the entire continental shelf
edge, and are likely one of the drivers for the concentration of Rice's
whales in the De Soto area.
---------------------------------------------------------------------------
\11\ Kendall, J.J., and W.W. Schroeder. (2000). I. Physical/
Biological Oceanographic Integration Workshop for the De Soto Canyon
and Adjacent Shelf: How, and Why, We Got Here. In: Physical/Biological
Oceanographic Integration Workshop for the DeSoto Canyon and Adjacent
Shelf: October 19-21, 1999. W.W. Schroeder and C.F. Wood, eds. OCS
Study MMS 2000-074. U.S. Department of the Interior, Minerals
Management Service, Gulf of Mexico OCS Region, New Orleans, LA. 168 pp.
OCS Study MMS 2000-074. U.S. Department of the Interior, Minerals
Management Service, Gulf of Mexico OCS Region, New Orleans, LA. 168 pp.
\12\ Bortone, S.A., and W. Johnson. (2000). III. Working group
Summaries, Working Group I. In: Physical/Biological Oceanographic
Integration Workshop for the DeSoto Canyon and Adjacent Shelf: October
19-21, 1999.
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The lynchpin of BOEM Notice to Lessees and Operators (NTL) No.
2023-G01 is, ``one recent study,'' from Soldevilla et al. (2022).\13\
(Unto itself, this is problematic; use of a single study to construct a
paradigm on which to recommend sweeping changes across an essential
industry is unscientific at best.) Further, the study in question draws
a conclusion which merits reexamination: that the animals detected via
passive acoustic monitoring (PAM) are part of the same population as
the Rice's whales detected in the eastern GOM De Soto area. The authors
note that, ``The stereotyped long-moan calls are detected in such high
numbers within the core habitat . . . that a manual review and logging
is not feasible.'' Clearly, the De Soto Canyon (DC) site represents a
concentrated population of Rice's whales present year-round. They note
specifically that, ``. . . more than 66,000 eastern GOM long-moan calls
were detected at the DC site.'' Comparatively, 1,939 total calls were
recorded at the Flower Garden West (WF) site; 429 at the Flower Garden
East (EF) site; and three at the Eugene Isle South (EI) site (see
Figure 2). Zero calls were recorded at the Grand Isle South (GI) site,
which is geographically closest to the De Soto Canyon (Figure 2). (Note
that the hydrophone at the East Main Pass (EP) site failed early in the
study and was excluded from the analysis.) Assuming that Rice's whales
follow the depth contour of 100-400 m, the animals would need to pass
the GI site en route to the western GOM locations. The implication that
these animals move from the eastern to western GOM along this shelf
edge when not a single call was detected in 9,072 hours of recordings
over the course of almost 13 months at this intermediate site seems
rather implausible. The authors themselves state that, ``Considering
the lack of detections at site GI . . . it remains unknown whether
animals are moving between the northwestern and northeastern sites or
whether these represent different groups of animals.'' \14\
---------------------------------------------------------------------------
\13\ Soldevilla, M.S., A.J. Debich, L.P. Garrison, J.A. Hildebrand,
and S.M. Wiggins. (2022). Rice's whales in the northwestern Gulf of
Mexico: call variation and occurrence beyond the known core habitat.
Endangered Species Research 48:155-174.
\14\ Soldevilla et al. (2022).
Figure 2
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The latest density models produced have not yet undergone peer
review in the scientific literature and have only recently been
published in NMFS and BOEM reports.15,16 These density
models incorporate seafloor water temperature and intermediate
Chlorophyll-a concentration (a proxy for primary productivity) commonly
associated with Rice's whale detections. However, these detections have
almost exclusively occurred within the De Soto Canyon. The authors
proceed to extrapolate far beyond the data frame--a practice widely
frowned upon by the scientific and modelling communities--to produce a
density map for the entire GOMx (see Figure 3). The assumption that
primary production, temperature at the seafloor, and water depth drive
Bryde's whale distribution, rather than simply correlating with the few
documented detections in a small portion of the GOMx, is highly
suspect. Moreover, these reports only became available in June 2023,
providing very little time for interested parties to review the
information prior to publication of the Proposed Rule.
---------------------------------------------------------------------------
\15\ Garrison, L.P, Ortega-Ortiz, J., Rappucci. G, Aichinger-Dias,
L, Mullin, K., Litz, J. (NOAA Southeast Fisheries Science Center,
Miami, FL). 2023. Gulf of Mexico Marine Assessment Program for
Protected Species (GOMMAPPS): marine mammals. Volume 2: appendix C:
Gulf of Mexico marine mammal spatial density models. New Orleans (LA):
US Department of the Interior, Bureau of Ocean Energy Management. 1264
p. Obligation No.: M17PG00013. Report No.: OCS Study BOEM 2023-042.
\16\ Rappucci, G., Garrison, L.P., Soldevilla, M., Ortega-Ortiz,
J., Reid, J., Aichinger-Dias, L., Mullin, K., and Litz, J. 2023. Gulf
of Mexico Marine Assessment Program for Protected Species (GoMMAPPS):
marine mammals. Volume 1: report. New Orleans (LA): US Department of
the Interior, Bureau of Ocean Energy Management. 104 p. Obligation No.:
M17PG00013. Report No.: OCS Study BOEM 2023-042.
Figure 3
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
From this information, it is clear that NMFS's determination
that the entire GOMx is ``occupied'' is not supported by the best
available science or the record before the agency. Just a few years
prior, in its 2019 listing determination, NMFS noted that Rice's whales
are, ``restricted primarily to a small region along the continental
shelf break in the De Soto Canyon area.'' \17\ Just weeks after
releasing the Proposed Rule, NMFS again reiterated in its stock
assessment report that, ``Sighting records and acoustic detections of
Rice's whales in the northern Gulf of Mexico (i.e., U.S. Gulf of
Mexico) occur primarily in the northeastern Gulf in the De Soto Canyon
area, along the continental shelf break between 100 m and 400 m
depth.'' \18\ NMFS cannot rationally determine that the entire GOMx is
occupied, while also explicitly stating that the De Soto Canyon hosts
the majority of the species and that the species has not been
documented outside of a narrow depth range.
---------------------------------------------------------------------------
\17\ Endangered and Threatened Wildlife and Plants; Endangered
Status of the Gulf of Mexico Bryde's Whale, 84 Fed. Reg. 15,446, 15,460
(Apr. 15, 2019). NMFS revised the common name of the species from
Bryde's whale to Rice's whale in 2021. Endangered and Threatened
Wildlife and Plants; Technical Corrections for the Bryde's Whale (Gulf
of Mexico Subspecies), 86 Fed. Reg. 47,022 (Aug. 23, 2021).
\18\ Stock Assessment Report at 114; see Final 2022 Marine Mammal
Stock Assessment Reports, 88 Fed. Reg. 54,592 (Aug. 11, 2023)
(announcing release of Stock Assessment Report).
---------------------------------------------------------------------------
The Reasonable and Prudent Alternative (RPA) of the BiOp provides
measures to minimize and mitigate potential risks to Rice's (then
Bryde's) whales. These measures include visual monitoring when
transiting the Rice's whale area, reporting transit plans to BOEM or
BSEE, observing a speed restriction to 10 knots during daylight hours,
avoiding nighttime or low visibility transit, and maintaining a
separation distance of 500 m from Rice's whales. The Rice's whale area
proposed in the BiOp is focused around the De Soto Canyon, with a
buffer included (see Figure 4). Nearly all documented Rice's whale
visual detections have occurred in this area, and therefore, mitigation
measures intended to reduce the risk of ship strikes in this region are
appropriate. Applying similar measures outside of the Rice's whale area
put forward in the BiOP RPA would be unlikely to provide additional
benefit or protection to the animals given the infrequency with which
they are observed in the central and western GOMx.
Figure 4
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Applying these measures outside of the BiOp RPA as detailed in
the NTL would not only provide no tangible benefit to the species, but
would significantly disrupt industry operations in the GOMx to the
point of inflicting unintended negative consequences on other protected
species. The ultimate goal of mitigation measures is to prevent the
need for their use in the first place by decreasing the likelihood of
interaction. Applying mitigation measures that are not risk-based
delays operations, leading to increased time on the water. Given that
the historical detection rate for other protected species is a sighting
about every 50 hours, it is not difficult to see that application of
these arbitrary measures across the entire shelf edge to protect Rice's
whales--which are exceedingly rare in the western and central GOMx--
would increase the likelihood of interacting with another protected
species. Further still, increasing operational duration will increase
environmental emissions, ultimately leading to even more broad-scale
effects.
The EnerGeo Alliance appreciates and supports inclusion of
requirements, in the bill, that NOAA Fisheries ensure that parties
directly impacted by the Stipulated Agreement or Notice to Lessees
shall be engaged in the reinitiated consultation on the Biological
Opinion--particularly including the opportunity to review drafts and
provide comment which shall be afforded due consideration. Robust
consultation with the energy geoscience industry on development of a
revised Biological Opinion and resultant RPAs, as required by the bill,
will contribute to more accurate and scientifically valid agency
actions on the Rice's Whale in the GOMx.
Finally, the EnerGeo Alliance strongly supports the provision
requiring that the Assistant Administrator enter into an agreement with
the National Academies of Science, Engineering, and Medicine to conduct
a study to determine the occurrence of Rice's whales in the GOMx. The
EnerGeo Alliance is eager to continue to improve the state of our
knowledge of Rice's whales and is actively engaged in planning future
research to accomplish this objective because conservation of marine
resources is a top priority for the organization.
The Proposed Rule, and therefore Stipulated Agreement and NTL, are
not based upon the best available science, and therefore the EnerGeo
Alliance supports prohibition of implementation until such time as the
agency undertakes additional work to update these conclusions. In my
opinion, compliance with the BiOp RPA ensures strong protection for the
Rice's whale to ensure the continued survival and fecundity of the
species. Expanding the Rice's whale area across the 100-400 m isobath
throughout the central and western GOMx is unlikely to provide
additional protection, but certain to drive unintended consequences
that may contribute to deleterious effects on other species and global
emissions reduction goals. In my professional opinion, settling for an
unscientific, overly broad critical habitat designation ultimately
fails the species, and limits our ability to provide appropriate
protection to individuals and the population.
Included here by reference, and attached for the record, are the
comments submitted by the EnerGeo Alliance and the American Petroleum
Institute (API) along with other U.S. focused energy trade
associations. The comment letter was submitted October 6, 2023,
entitled, ``Comments of Trade Associations regarding the proposed rule
to designate Rice's whale critical habitat--NOAA-NMFS-2023-0028''. The
submission includes two 3rd party reports: ``Review of the Rice's Whale
Proposed Critical Habitat and Related Scientific Literature'', and
``The Economic Impacts of Gulf of Mexico Oil and Natural Gas Vessel
Transit Restrictions''.
I appreciate the opportunity to testify today.
*****
The following documents were submitted as supplements to Mr.
Loureiro's testimony.
American Petroleum Institute EnerGeo Alliance
National Ocean Industries Association
Independent Petroleum Association of America
October 6, 2023
VIA Federal eRulemaking Portal: http://www.regulations.gov
Mr. David Bernhart
Assistant Regional Administrator, Protected Resources Division
National Marine Fisheries Service, Southeast Regional Office
263 13th Avenue South
St. Petersburg, FL 33701
Re: Comments of Trade Associations regarding the proposed rule to
designate Rice's whale critical habitat--NOAA-NMFS-2023-0028
Dear Mr. Bernhart:
This letter provides the comments of the American Petroleum
Institute (``API''), EnerGeo Alliance (``EnerGeo''), National Ocean
Industries Association (``NOIA''), and Independent Petroleum
Association of America (``IPAA'') (collectively, the ``Associations'')
in response to the National Marine Fisheries Service's (``NMFS'')
proposal to designate Rice's whale (Balaenoptera ricei) critical
habitat in the Gulf of Mexico (``GOMx'') (``Proposed Rule'').\1\ The
Associations appreciate NMFS's consideration of these comments, which
include the attached Review of the Rice's Whale Proposed Critical
Habitat and Related Scientific Literature prepared by LGL Ecological
Research Associates (hereinafter referred to as ``Ireland (2023)'')
(Attachment A) and The Economic Impacts of Gulf of Mexico Oil and
Natural Gas Vessel Transit Restrictions prepared by Energy & Industrial
Advisory Partners (hereinafter referred to as ``EIAP (2023)'')
(Attachment B). The Associations request that this comment letter and
all attachments be included in the administrative record for this
rulemaking.
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\1\ Endangered and Threatened Species; Designation of Critical
Habitat for the Rice's Whale, 88 Fed. Reg. 47,453 (July 24, 2023)
(proposing to add 50 C.F.R. Sec. 226.230 designating critical habitat
for Rice's whale). NMFS extended the period to submit comments on the
Proposed Rule to October 6, 2023. Endangered and Threatened Wildlife
and Plants; Designation of Critical Habitat for the Rice's Whale,
Public Hearing and Extension of Public Comment Period, 88 Fed. Reg.
62,522 (Sept. 12, 2023).
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I. THE ASSOCIATIONS
API is a national trade association representing nearly 600 member
companies involved in all aspects of the oil and natural gas industry,
including those that operate within the GOMx in areas that NMFS is
proposing to designate as Rice's whale critical habitat. API's members
include producers, refiners, suppliers, pipeline operators, and marine
transporters, as well as service and supply companies that support all
segments of the industry. API and its members are dedicated to meeting
environmental requirements, while economically developing and supplying
energy resources for consumers.
EnerGeo is the international trade association representing the
industry that provides geophysical services (geophysical data
acquisition, processing and interpretation, geophysical information
ownership and licensing, and associated services and product providers)
to the oil and natural gas industry. EnerGeo member companies, which
operate within the GOMx in areas that NMFS is proposing to designate as
Rice's whale critical habitat, play an integral role in the successful
exploration and development of offshore hydrocarbon resources through
the acquisition and processing of geophysical data.
The National Ocean Industries Association represents the interests
of all segments of the offshore energy industry, including offshore oil
and gas, offshore wind, offshore minerals, offshore carbon capture, use
and sequestration, and other emerging technologies. NOIA's membership
includes energy project leaseholders and developers and the entire
supply chain of companies that make up an innovative ecosystem
contributing to the safe and responsible development and production of
offshore energy.
The Independent Petroleum Association of America is a national
upstream trade association representing thousands of independent oil
and natural gas producers and service companies across the United
States. Independent producers develop 91 percent of the nation's oil
and natural gas wells. These companies account for 83 percent of
America's oil production, 90 percent of its natural gas and natural gas
liquids production, and support over 4.5 million American jobs.
II. SUMMARY OF COMMENTS
NMFS proposes to designate over 28,000 square miles of GOMx
continental shelf and slope that it asserts are all ``occupied'' by
Rice's whales.\2\ This proposal (if adopted) is arbitrary, capricious,
and violates the Administrative Procedure Act (``APA'') and the
Endangered Species Act (``ESA'') as follows:
---------------------------------------------------------------------------
\2\ 88 Fed. Reg. at 47,455; id. at 47,460.
NMFS's determination that the entire GOMx is ``occupied''
is not supported by the best available science or the
record before the agency, and is contradicted by NMFS's own
statements that the Rice's whale's range is primarily
restricted to the De Soto Canyon area of the northeastern
GOMx and that Rice's whales rely on that area for all of
their life history stages. NMFS cites only a single Rice's
whale sighting off the central Texas coast and potential
acoustic detections in the western and northern GOMx as
support for its conclusion that Rice's whales ``occupy''
the entire GOMx (while simultaneously dismissing equally
rare Atlantic continental shelf sightings). This is both
legally and scientifically insufficient to demonstrate that
Rice's whales actually use the entire GOMx with sufficient
---------------------------------------------------------------------------
regularity to qualify as occupied habitat.
Because NMFS has not demonstrated that Rice's whales
occupy the entire GOMx, it fails to meet the ESA's
requirement to designate as critical habitat the ``specific
areas within'' the broader geographical area occupied by
the species.
Even within the areas proposed for designation, NMFS has
failed to demonstrate that all areas are occupied by Rice's
whales--or even qualify as ``habitat.'' Conclusions
regarding the presence of Rice's whales in much of the
central and northwestern GOMx continental shelf appear to
be based on predictive modeling, not on sightings or other
evidence. There is no regular pattern in the acoustic data
suggesting a persistent Rice's whale presence in these
areas. Moreover, there are no data regarding mating,
births, prey availability, or other information that would
demonstrate that these areas actually support the life
history parameters of Rice's whales. For these reasons,
NMFS has failed to demonstrate that the central and
northwestern GOMx continental shelf and slope are
``occupied'' or even ``habitat.''
NMFS is required to identify specific locations within the
proposed critical habitat designation where essential
habitat features ``are found.'' Instead, NMFS identifies a
single oceanographic feature--the 100- to 400-meter
isobath--as ``essential'' to Rice's whales but acknowledges
that the ``attributes'' making this area valuable to Rice's
whales are prey availability, certain water
characteristics, and quiet conditions. NMFS does not
identify where, within the proposed critical habitat
designation, these key attributes are found, in violation
of the ESA's requirement to identify the ``specific areas''
where such essential features exist.
NMFS's identification of ``sufficiently quiet conditions''
as a valuable ``attribute'' of Rice's whale habitat is
arbitrary and capricious because in-water sound is not an
element of habitat but rather the result of natural and
anthropogenic sources introducing sound to the marine
environment. ``Sufficiently quiet conditions'' is not a
``feature'' that can be ``found'' in a ``specific area'' as
required by the ESA. Furthermore, NMFS admits that much of
the area proposed for designation is subject to
anthropogenic sound, which means that NMFS does not know if
``quiet conditions'' are even present in areas proposed as
critical habitat.
Finally, NMFS's economic analysis fails to identify and
consider known and likely costs of a critical habitat
designation, falling materially short of the ESA's
requirements by dismissing the potential for substantive
modifications to federally permitted activities. Most
critically, although NMFS acknowledges that energy
development activities may be subject to conservation
measures or other ``special management'' protections, it
irrationally concludes that a designation would not result
in project modifications. Indeed, burdensome protection
measures and development restrictions that appear to derive
from NMFS's proposed critical habitat designation have
already been included in GOMx lease stipulations and
acreage exclusions in the very area proposed for
designation.\3\ These measures and all the other future
measures, the effects of which were ignored by NMFS, will
have enormous economic impacts. NMFS's failure to identify
or consider these impacts violates the ESA.
---------------------------------------------------------------------------
\3\ A federal court has preliminarily enjoined these stipulations
and acreage exclusions. Louisiana v. Haaland, No. 23-30666 (5th Cir.
Sept. 25, 2023) (slip op.), aff'g, Nos. 2:23-CV-01157 & 2:23-CV-01167
(W.D. La. Sept. 21, 2023) (Memorandum Order).
For these reasons, as described in the Associations' detailed
comments below, NMFS must withdraw the Proposed Rule and reissue a
critical habitat proposal that identifies for designation only those
``specific areas within'' areas of the GOMx actually occupied by Rice's
whales that qualify as habitat and on which are ``found'' the
``essential features'' of Rice's whale habitat that require special
management. NMFS must consider the material economic, national
security, and other relevant impacts of such a designation, including
from ``adverse modification'' findings, as well as the revenue
implications for the federal and state governments. Should NMFS move
forward with designation of Rice's whale critical habitat, it should
exclude from such designation the central and northwestern GOMx where
the impact of a designation would far outweigh any potential benefits
to Rice's whales.
III. DETAILED COMMENTS
A. NMFS's determination that the entire GOMx is ``occupied'' is not
supported by the best available science or the record before
the agency, and is contradicted by NMFS's own statements.
The ESA provides for designation of critical habitat to the extent
``prudent and determinable'' \4\ in ``specific areas within the
geographical area occupied by the species'' at the time of listing.\5\
Unoccupied habitat can also be designated as ``critical'' but only
after a determination that occupied habitat is inadequate for the
species' conservation \6\--a conclusion that NMFS does not make in the
Proposed Rule.\7\ Therefore, before determining which ``specific areas
within'' Rice's whale's occupied habitat should be designated as
critical, NMFS must define its occupied habitat. In the Proposed Rule,
NMFS finds that ``at the time of listing Rice's whales occupied the
Gulf of Mexico.'' \8\ This finding is not supported by the best
available science or the record before the agency, and is arbitrary and
capricious.
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\4\ 16 U.S.C. Sec. 1533(a)(3)(A).
\5\ Id. Sec. 1532(5)(A)(i) (emphasis added).
\6\ Id. Sec. 1532(5)(A)(ii) (unoccupied habitat may be designated
if the area is ``essential for the conservation of the species''); 50
C.F.R. Sec. 424.12(b)(2) (``The Secretary will only consider unoccupied
areas to be essential where a critical habitat designation limited to
geographical areas occupied would be inadequate to ensure the
conservation of the species.'').
\7\ See Endangered Species Act Rice's Whale Critical Habitat
Report, Proposed Information Basis and Impact Considerations of
Critical Habitat Designation, at 29 (July 2023), https://
www.fisheries.noaa.gov/s3/2023-07/Critical-Habitat-Report-508-Final.pdf
(stating that NMFS is not able to identify any areas outside of the
geographical area occupied by the species that are essential for its
conservation) (``Critical Habitat Report'').
\8\ 88 Fed. Reg. at 47,460 (``[W]e have determined that at the time
of listing Rice's whales occupied the Gulf of Mexico.'').
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In support of its conclusion that Rice's whales occupy the entire
GOMx,\9\ NMFS cites only (1) a single 2017 confirmed sighting in the
western GOMx off the central Texas coast and (2) potential acoustic
detection of Rice's whale calls in the western and northern GOMx from
July 2016 to August 2017.\10\ Based on these limited data--and despite
rejecting similarly limited data on the Atlantic coast in determining
occupancy \11\--NMFS explains that Soldevilla et al. (2022b) concluded
that Rice's whales ``persistently occur over a broader distribution in
the GOMx than was previously understood.'' \12\ From this alone, NMFS
takes an arbitrary and unscientific leap to conclude that the Rice's
whales ``occupied the Gulf of Mexico'' at the time of listing.\13\
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\9\ The absence of any further specificity in the Proposed Rule
with regard to locations of Rice's whale occupation in the GOMx
together with the statutory requirement to identify the area ``occupied
by the species'' before designating its critical habitat makes clear
that NMFS is reaching and relying on a conclusion that Rice's whales
occupy the entire GOMx. Should NMFS determine that Rice's whales do not
occupy the entire GOMx, then it must issue a new proposed rule for
public review and comment.
\10\ 88 Fed. Reg. at 47,460; Critical Habitat Report at 8.
\11\ On the Atlantic coast, two Rice's whale strandings were deemed
insufficient by NMFS to reach an ``occupied'' finding despite
expressing just months ago that the data were unclear. Compare U.S.
Atlantic and Gulf of Mexico Marine Mammal Stock Assessments 2022, at
114 (June 2023), https://media.fisheries.noaa.gov/2023-08/Final-
Atlantic-and-Gulf-of-Mexico-SAR.pdf (``Two strandings from the
southeastern U.S. Atlantic coast share the same genetic characteristics
with those from the northern Gulf of Mexico . . ., but it is unclear
whether these are extralimital strays . . . or whether they indicate
the population extends from the northeastern Gulf of Mexico to the
Atlantic coast of the southern U.S. . . ..'' (citations omitted))
(``Stock Assessment Report''), with 88 Fed. Reg. at 47,458 (stating
that Bryde's whales are ``effectively absent from the U.S. east
coast''). NMFS's sudden certainty that the Atlantic coast is not
occupied while taking an entirely different approach to similarly
limited data within the GOMx demonstrates the arbitrary nature of
NMFS's use of limited scientific information.
\12\ 88 Fed. Reg. at 47,460.
\13\ Id.
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The ESA's implementing regulations define the ``geographical area
occupied by the species'' to include areas that are used
``periodically,'' but they must in fact be ``used'' (and ``not solely
by vagrant individuals'').\14\ Courts have found that an area is
occupied only if a species uses the area ``with sufficient regularity
that it is likely to be present during any reasonable span of time.''
\15\ Sightings of one or two individuals of a species are not
sufficient to determine that an area is ``occupied.'' \16\ The limited
sighting and acoustic data identified in the Proposed Rule are
therefore insufficient to support NMFS's determination that Rice's
whales ``occupied the Gulf of Mexico'' at the time of listing.
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\14\ 50 C.F.R. Sec. 424.02.
\15\ Ariz. Cattle Growers' Ass'n v. Salazar, 606 F.3d 1160, 1165
(9th Cir. 2010).
\16\ See Ctr. for Biological Diversity v. U.S. Fish & Wildlife
Serv., 67 F.4th 1027, 1039 (9th Cir. 2023) (single jaguar sighting in
nearby mountain range is not sufficient to determine that area is
occupied several years later); Otay Mesa Prop., L.P. v. U.S. Dep't of
Interior, 646 F.3d 914, 916-17 (D.C. Cir. 2011) (single sighting of
four shrimp in one tire rut on the property four years after species'
listing was not sufficient to designate land as occupied).
The best available science demonstrates that the Rice's whale does
---------------------------------------------------------------------------
not occupy the entire GOMx. As described in Ireland (2023):
There are no available data to support that Rice's whales occur
in shallower or deeper waters of the GOMx away from the
continental shelf break. There have been no reported sightings
in waters <100 m or >408 m deep (Rosel et al.
2021).[17]
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\17\ Ireland (2023) at 11.
NMFS previously agreed, stating in its 2019 listing determination
that Rice's whales are ``restricted primarily to a small region along
the continental shelf break in the De Soto Canyon area'' of the
northeastern GOMx.\18\ On August 11, 2023--just weeks after issuing the
Proposed Rule--NMFS issued in its Rice's whale stock assessment report
restating this conclusion:
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\18\ Endangered and Threatened Wildlife and Plants; Endangered
Status of the Gulf of Mexico Bryde's Whale, 84 Fed. Reg. 15,446, 15,460
(Apr. 15, 2019). NMFS revised the common name of the species from
Bryde's whale to Rice's whale in 2021. Endangered and Threatened
Wildlife and Plants; Technical Corrections for the Bryde's Whale (Gulf
of Mexico Subspecies), 86 Fed. Reg. 47,022 (Aug. 23, 2021).
The species has a relatively restricted range within the
northern Gulf of Mexico . . . Sighting records and acoustic
detections of Rice's whales in the northern Gulf of Mexico
(i.e., U.S. Gulf of Mexico) occur primarily in the northeastern
Gulf in the De Soto Canyon area, along the continental shelf
break between 100 m and 400 m depth, with a single sighting at
408 m . . .. [19]
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\19\ Stock Assessment Report at 114; see Final 2022 Marine Mammal
Stock Assessment Reports, 88 Fed. Reg. 54,592 (Aug. 11, 2023)
(announcing release of Stock Assessment Report).
Survey work confirms that Rice's whales are not found throughout
the GOMx. From 2017 to 2018, 34,464 kilometers of aerial surveys of
waters less than 200 meters deep and 19,576 kilometers of vessel-survey
effort in waters deeper than 200 meters resulted in no Rice's whale
sightings outside of the 100- to 400-meter water depth range.\20\
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\20\ Rappucci et al., U.S. Dep't of the Interior, BOEM, Gulf of
Mexico Marine Assessment Program for Protected Species (GoMMAPPS):
Marine Mammals, Volume 1: Report, OCS Study BOEM 2023-042 (June 2023).
---------------------------------------------------------------------------
The Proposed Rule itself raises questions regarding whether the
entire GOMx is occupied. For example, NMFS states that the 100- to 400-
meter isobath area constitutes the Rice's whale's ``restricted range,''
explaining that ``Rice's whales rely entirely on the GOMx continental
shelf and slope waters between the 100 and 400 m isobaths to support
all of their life history stages.'' \21\ Furthermore, NMFS states that
Soldevilla et al. (2022b) ``did not record Rice's whale calls at a site
offshore of Grand Isle, Louisiana or during 2 months at a site in the
north-central GOMx.'' \22\ NMFS concedes that the absence of call
detections at these sites ``could indicate an absence of Rice's
whales.'' \23\ NMFS even lacks confidence that Rice's whales occupy
parts of the northwestern GOMx shelf where it proposes to designate
critical habitat, stating that predictive modeling only indicates that
Rice's whales ``may'' occupy the 200-meter isobath area along the
northwestern GOMx shelf break.\24\
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\21\ 88 Fed. Reg. at 47,461 (emphases added).
\22\ Id. at 47,457.
\23\ Id. (emphasis added); see also Critical Habitat Report at 8, 9
(contemporary sightings are primarily confined to the core distribution
area in the northeastern GOMx, but Rice's whales ``historically may
have had a broader distribution'' (emphasis added)).
\24\ 88 Fed. Reg. at 47,457. NMFS recognizes in the Proposed Rule
that only two sightings fell outside the 151- to 252-meter isobaths.
Id. at 47,462.
---------------------------------------------------------------------------
NMFS cannot reconcile its conclusion that Rice's whales occupy the
entire GOMx with its acknowledgment that Rice's whales may or may not
occupy many parts of the GOMx (including areas proposed as critical
habitat) or with its conclusions that Rice's whales are restricted to,
and ``rely entirely'' on, northeastern GOMx for ``all'' of their life
history needs.\25\ Indeed, expecting the small population of Rice's
whales to ``occupy'' the entire GOMx defies logic. Accordingly, NMFS's
conclusion that the entire GOMx consists of ``occupied'' habitat is not
supported by the best available science and is arbitrary and
capricious.\26\ This flawed conclusion--on which the Proposed Rule is
fundamentally premised--undermines all of the subsequent analyses and
conclusions in the Proposed Rule, rendering the entire Proposed Rule
arbitrary and capricious.
---------------------------------------------------------------------------
\25\ See 84 Fed. Reg. at 15,460 (``The best available scientific
information . . . indicate[s] that Bryde's whales in the Gulf of Mexico
are now restricted primarily to a small region along the continental
shelf break in the De Soto Canyon area of the northeastern Gulf of
Mexico.''); 88 Fed. Reg. at 47,456-57 (acknowledging that Rice's whale
core habitat ``is considered to be in the northeastern GOMx, centered
over the De Soto Canyon in waters between 150 m and 410 m depth'').
Without a reasonable explanation for reversing its position, NMFS's
conclusion that Rice's whales occupy the entire GOMx is arbitrary and
capricious. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009) (agency must ``display awareness that it is changing position''
and provide a reasoned explanation for change in position); Motor
Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 57 (1983) (`` `An agency's view of what is in the public
interest may change . . . But an agency changing its course must supply
a reasoned analysis[.]' '' (citation omitted)).
\26\ NMFS's own Critical Habitat Report does not support a
conclusion that the entire GOMx is occupied, finding only that a recent
study concluded that Rice's whales ``persistently occur over a broader
distribution in the GOMx than was previously understood, which is
documented to include both the northeastern and northwestern GOMx.''
Critical Habitat Report at 14. NMFS may not reasonably reach a
determination that the entire Gulf of Mexico is occupied based on the
information presented in the Critical Habitat Report.
---------------------------------------------------------------------------
B. NMFS has not demonstrated that it is proposing to designate
``specific areas within'' Rice's whale occupied habitat.
As described above, NMFS may only designate as ``critical habitat''
the ``specific areas'' that are ``within'' a broader geographical area
that is occupied by a species.\27\ As one court has explained:
---------------------------------------------------------------------------
\27\ 16 U.S.C. Sec. 1532(5)(A)(i); see also N. Spotted Owl v.
Lujan, 758 F. Supp. 621, 623 (W.D. Wash. 1991) (``[C]ritical habitat
only includes the minimum amount of habitat needed to avoid short-term
jeopardy or habitat in need of immediate intervention.'').
[T]he statute contemplates that the agency will first determine
``the geographical area occupied by the species'' and then
proceed to identify the ``areas within the geographical area
occupied by the species'' on which the [physical or biological
features (``PBFs'')] are found. 16 U.S.C. Sec. 1532(5)(A)(i)
(emphasis added). This reading is underscored by the governing
regulations, which require the [U.S. Fish and Wildlife Service
(``FWS'')] to begin by ``(i) [i]dentify[ing] the geographical
area occupied by the species at the time of listing'' and also
``(ii) [i]dentify[ing] physical and biological features
essential to the conservation of the species at an appropriate
level of specificity using the best available scientific
data.'' 50 C.F.R. Sec. 424.12(b)(1). And it is only after the
FWS has made these individual determinations that the
regulations require FWS to ``(iii) [d]etermine the specific
areas within the geographical area occupied by the species that
contain the physical or biological features essential to the
conservation of the species.'' [28]
---------------------------------------------------------------------------
\28\ Otay Mesa Prop., L.P. v. U.S. Dep't of the Interior, 344 F.
Supp. 3d 355, 371 (D.D.C. 2018) (citation omitted; emphasis in
original; first, second, and third brackets added); see also Ctr. for
Biological Diversity, 67 F.4th at 1038 (``For land to be classified as
occupied critical habitat, it must be `within the geographical area
occupied by the species, at the time [the species] is listed.' ''
(brackets in original) (quoting 16 U.S.C. Sec. 1532(5)(A)(i))); Cape
Hatteras Access Pres. All. v. U.S. Dep't of Interior, 344 F. Supp. 2d
108, 119-20 (D.D.C. 2004) (``Whether and how an area becomes critical
habitat first depends on whether a listed species occupies that area .
. . [and] [o]nce the Service properly determines that a species
occupies a candidate area for critical habitat, the Service must then
determine that [PBFs] . . . are `found' on specific areas within that
area.'' (emphasis added)).
Although NMFS asserts that the Rice's whale ``occupied the Gulf of
Mexico'' at the time of listing,\29\ this conclusion is arbitrary,
capricious, and not supported by the best available science, as
demonstrated above. Consequently, NMFS may not rely on this unsupported
conclusion to meet its obligation to designate a specific area
``within'' Rice's whale occupied habitat.
---------------------------------------------------------------------------
\29\ 88 Fed. Reg. at 47,460.
---------------------------------------------------------------------------
C. NMFS has not demonstrated that the central and northwestern GOMx
continental shelf and slope are ``occupied.''
In the Proposed Rule, NMFS does not propose to designate unoccupied
habitat, nor has it attempted to demonstrate that any unoccupied
habitat is ``essential for the conservation of the species,'' \30\ or
that designating only occupied habitat would be ``inadequate to ensure
the conservation of the species.'' \31\ Accordingly, NMFS may propose
to designate critical habitat only in areas that are occupied by Rice's
whales. However, NMFS has not demonstrated that the central and
northwestern GOMx continental shelf and slope (as proposed for
designation) are, in fact, occupied by Rice's whales. According to
Ireland (2023):
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\30\ 16 U.S.C. Sec. 1532(5)(A)(ii).
\31\ 50 C.F.R. Sec. 424.12(b)(2) (``The Secretary will only
consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied would be inadequate
to ensure the conservation of the species.'').
Based on sightings and acoustic detections (Rosel et al. 2021;
Soldevilla et al. 2022a,b), the only habitat in which Rice's
whales are known to consistently and regularly occur in the
GOMx is the core habitat in the northeastern GOMx (Figure 1).
As reviewed in Section 3, evidence of Rice's whale occurrence
in the northwestern GOMx is based on infrequent and irregular
acoustic detections (Soldevilla et al. 2022a,b) and a single
confirmed sighting (NMFS 2018a). There is no evidence of
persistent presence or a regular pattern of occurrence in the
acoustic data (Soldevilla et al. 2022b) that would provide
insight into how the whales use this area, such as for
migration, seasonal foraging, or breeding.[32]
---------------------------------------------------------------------------
\32\ Ireland (2023) at 11.
The ESA's implementing regulations define the ``geographical area
occupied by the species'' to mean an area ``delineated around species'
occurrences,'' \33\ not areas where modeling suggests a species may
occur. The area must actually be ``used'' by the species with
``sufficient regularity that it is likely to be present during any
reasonable span of time.'' \34\ NMFS's conclusions regarding the
presence of Rice's whales in the central and northwestern GOMx
continental shelf appear to be largely based on predictive modeling and
not on sightings.\35\ Just as the sighting of one or two individuals is
insufficient to determine an area is occupied,\36\ the absence of
sightings or other evidence of occurrence in a ``specific area'' must
also be insufficient. For these reasons, NMFS may not reasonably
conclude that the central and northwestern GOMx continental shelf and
slope are areas occupied by the Rice's whale.
---------------------------------------------------------------------------
\33\ 50 C.F.R. Sec. 424.02 (emphasis added).
\34\ Ariz. Cattle Growers' Ass'n, 606 F. 3d at 1165; see also 50
C.F.R. Sec. 424.02 (the geographical area occupied by the species ``may
include those areas used throughout all or part of the species' life
cycle'' (emphasis added)).
\35\ Ireland (2023) at 6-8. NMFS appears to be basing its
designation outside of the northwestern GOMx primarily on the habitat-
based density prediction model. Id. Ireland (2023) describes the
significant limitations in the ability of such models to predict the
presence of species outside of where survey effort or observations are
made. Id. at 7-9. In addition, to the extent NMFS is basing its
determination on limited acoustic data, that is insufficient to
designate an area as occupied.
\36\ See supra note 16.
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D. NMFS has not demonstrated that the central and northwestern GOMx
continental shelf and slope are ``habitat.''
The U.S. Supreme Court has confirmed that an area must be
``habitat'' in order to be ``critical habitat.'' \37\ The Proposed Rule
does not support a conclusion that the entire area proposed for
designation constitutes Rice's whale habitat. It is unknown how much of
the GOMx continental shelf and slope-associated waters between the 100-
and 400-meter isobaths actually support the life history parameters of
the Rice's whale.\38\ There is no direct evidence to show what Rice's
whales are feeding on and whether that prey exists throughout the
continental shelf and slope of the GOMx.\39\ A critical habitat
designation is arbitrary and capricious where, as here, it is based on
oceanographic features (i.e., water depth) without analysis of whether
specific areas actually support the species.\40\
---------------------------------------------------------------------------
\37\ Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct.
361, 368 (2018) (`` `[C]ritical habitat' is the subset of `habitat'
that is `critical' to the conservation of an endangered species.'').
\38\ Ireland (2023) at 12.
\39\ Id.
\40\ See, e.g., Otay Mesa, 344 F. Supp. 3d at 366 (critical habitat
designation cannot be made ``solely vis-a-vis the topography of the
pertinent geographical [area] without further analysis of whether and
to what extent the area actually functions as [a] watershed'' that
supports the species).
---------------------------------------------------------------------------
Indeed, as noted above, NMFS has recognized that Rice's whales are
``restricted primarily to a small region along the continental shelf
break in the De Soto Canyon area'' of the northeastern GOMx.\41\ As
explained in the Proposed Rule, the concentration of Rice's whales in
the northeastern GOMx appears to be explained by ``higher summer
chlorophyll-a concentrations, an indicator of phytoplankton abundance
and biomass in coastal and estuarine waters, . . . as compared to other
regions in the GOMx with suitable bottom temperatures, but less surface
productivity.'' \42\ The unique De Soto Canyon physical structure and
location result in recurring cold-water masses not known to occur
anywhere else in the GOMx.\43\ This habitat has been defined as ``core
habitat'' for Rice's whales \44\ and is the only area within the GOMx
that the Proposed Rule demonstrates contains essential features needed
to support the Rice's whale population. NMFS has failed to demonstrate
that all of the area proposed for designation, and particularly the
central and northwestern GOMx continental shelf and slope, even qualify
as ``habitat,'' much less ``occupied habitat'' or ``critical habitat.''
---------------------------------------------------------------------------
\41\ 84 Fed. Reg. at 15,460; see also Stock Assessment Report at
114 (explaining that sightings and acoustic detections have primarily
been documented in the De Soto Canyon area).
\42\ 88 Fed. Reg. at 47,458.
\43\ Ireland (2023) at 12 (citing Schroeder and Woods (2000)). The
Mississippi River, Loop Current, and associated eddies cause mixing in
this area, which in turn can lead to elevated productivity compared to
surrounding areas, and variations in bottom features likely contribute
to unique biological processes in the area that support Rice's whales.
Id.; see also Critical Habitat Report at 6 (core habitat area ``is
characterized by seasonal advection of low salinity, high productivity
surface waters (i.e., waters with high production of organic matter by
planktonic plants), leading to persistent upwelling driven by both
winds and interactions with the loop current'').
\44\ Critical Habitat Report at 6 (noting that Rice's whale core
habitat is considered to be in the northeastern GOMx ``centered over
the De Soto Canyon in waters between 150 m and 410 m depth'' (citing
Rosel et al. (2021))). This area is also sometimes known as the ``core
distribution area.'' Id.
---------------------------------------------------------------------------
E. NMFS may not circumvent the ESA's requirement to identify essential
features ``found'' in proposed critical habitat areas by
calling such features ``attributes.''
In order to designate an area as critical habitat, NMFS must find
that it includes ``those physical or biological features [PBFs] (I)
essential to the conservation of the species and (II) which may require
special management considerations or protection.'' \45\ PBFs are those
``features that occur in specific areas and that are essential to
support the life-history needs of the species.'' \46\ It is well
settled that those features must be ``found'' in the specific areas
proposed for designation; \47\ NMFS may not ``rely on hope'' that PBFs
will ``likely be found in the future.'' \48\
---------------------------------------------------------------------------
\45\ 16 U.S.C. Sec. 1532(5)(A)(i).
\46\ 50 C.F.R. Sec. 424.02.
\47\ 16 U.S.C. Sec. 1532(5)(A)(i) (providing for designation of
``the specific areas within the geographical area occupied by the
species, at the time it is listed . . . on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) which may require special management
considerations or protection'' (emphasis added)); Home Builders Ass'n
of N. Cal. v. U.S. Fish & Wildlife Serv., 268 F. Supp. 2d 1197, 1214-15
(E.D. Cal. 2003) (PBFs must be ``found'' on occupied land before that
land can be eligible for critical habitat designation), disapproved of
on other grounds by Home Builders Ass'n of N. Cal. v. U.S. Fish &
Wildlife Serv., 616 F.3d 983, 988 (9th Cir. 2010).
\48\ Cape Hatteras, 344 F. Supp. 2d at 122-23 (finding it improper
to ``cast a net over tracts of land with the mere hope that they will
develop [PBFs]'').
---------------------------------------------------------------------------
In the Proposed Rule, NMFS identifies a single ``essential
feature'' of Rice's whale habitat--the GOMx continental shelf and slope
from the 100- to 400-meter isobath.\49\ This is indeed an oceanographic
feature that is very easy to ``find'' on a map, but it does not
constitute an appropriate PBF without evidence demonstrating that each
part of it is ``essential'' to the species. Instead of satisfying that
requirement, however, NMFS simply states that the whole area qualifies
as ``essential'' to the species ``[b]ecause Rice's whales rely entirely
on the GOMx continental shelf and slope waters between the 100 and 400
m isobaths to support all of their life history stages . . . .'' \50\
This circular argument--that this location qualifies as essential to
Rice's whales because it is relied on by Rice's whales--does not meet
the ESA's requirement to identify the actual ``physical or biological
features'' that are ``essential to the species'' and that cause Rice's
whales to use the specific locations within the GOMx proposed for
designation.\51\
---------------------------------------------------------------------------
\49\ 88 Fed. Reg. at 47,471 (proposing new regulations at 50 C.F.R.
Sec. 226.230(b) describing the ``essential feature'' of the critical
habitat); Critical Habitat Report at 17.
\50\ 88 Fed. Reg. at 47,461; Critical Habitat Report at 15.
\51\ 16 U.S.C. Sec. 1532(5)(A)(i).
---------------------------------------------------------------------------
After identifying the GOMx continental shelf and slope as
``essential,'' NMFS acknowledges that certain ``attributes'' of the
area ``influence the value'' of the GOMx continental shelf and slope
``to the conservation of the species.'' \52\ According to NMFS, these
``attributes'' are (1) prey availability, (2) water characteristics,
and (3) quiet conditions.\53\ NMFS states that these three attributes
``support Rice['s] whales' ability to forage, develop, communicate,
reproduce, rear calves, and migrate throughout the GOMx continental
shelf and slope waters.'' \54\ Despite their importance to the
habitat's value, however, NMFS makes no attempt to identify where,
within the proposed critical habitat designation, each of these key
habitat attributes can be found. Tellingly, each of the features that
NMFS says is a mere ``attribute'' of PBF in the Proposed Rule is
commonly identified by NMFS as a PBF itself in other critical habitat
rules.\55\ In fact, the definition of ``[p]hysical or biological
features essential to the conservation of the species'' refers to
``water characteristics'' and ``prey'' as examples of such
features.\56\
---------------------------------------------------------------------------
\52\ 88 Fed. Reg. at 47,461.
\53\ Id.
\54\ Id.
\55\ See, e.g., 50 C.F.R. Sec. 226.203(a) (identifying physical
oceanographic conditions such as currents and circulation patterns,
bathymetric features, and temperatures as a PBF for the North Atlantic
right whale); id. Sec. 226.211(c) (listing specific water quality
conditions as essential elements of California salmon critical
habitat); id. Sec. 226.206(b) (identifying water quality as essential
feature of critical habitat for Southern Resident killer whale critical
habitat); id. (identifying prey species as essential feature of
Southern Resident killer whale critical habitat); id. Sec. 226.227(f)
(identifying prey species as essential feature of Pacific humpback
whale habitat); id. Sec. 226.215(a) (identifying prey species found
within North Pacific right whale habitat).
\56\ Id. Sec. 424.02.
---------------------------------------------------------------------------
NMFS may not sidestep the ESA's obligation to demonstrate the
specific locations on which essential features are ``found'' by
identifying a large oceanographic feature as a PBF and then describing
that large area's essential features as ``attributes'' without making
any attempt to identify the specific areas where they occur within that
large area.\57\ Such an approach both evades and violates the ESA's
clear edict to identify ``the specific areas'' where essential features
are ``found.'' \58\
---------------------------------------------------------------------------
\57\ This is equivalent to identifying a terrestrial species'
occupied habitat as an entire mountain range, identifying land above a
certain altitude as its PBF, and then describing the specific habitat
features it actually depends upon as ``attributes'' without identifying
where they occur within the mountain range.
\58\ 16 U.S.C. Sec. 1532(5)(A)(i).
---------------------------------------------------------------------------
F. The existence of ``sufficiently quiet conditions'' is not a PBF.
As part of the continental shelf and slope PBF, the Proposed Rule
identifies as an attribute ``[s]ufficiently quiet conditions for normal
use and occupancy, including intraspecific communication, navigation,
and detection of prey, predators, and other threats.'' \59\ NMFS
explains that sound ``impair[s] sufficiently quiet conditions for
normal use and occupancy'' if it inhibits the whale's ability to
``receive and interpret sound for the purposes of navigation,
communication, and detection [of] prey, predators, and other threats.''
\60\ This is not an essential feature for purposes of critical habitat
designation.
---------------------------------------------------------------------------
\59\ 88 Fed. Reg. at 47,461.
\60\ Id.
---------------------------------------------------------------------------
First, in-water sound is not an element of habitat but rather the
result of natural and anthropogenic sound introduced to the marine
environment that has the potential to affect marine mammals and other
species. Likewise, the existence of ``sufficiently quiet conditions''
is not a ``feature'' that can be ``found'' in a ``specific area.'' \61\
Indeed, rather than identifying where, within the proposed critical
habitat, such conditions currently exist, NMFS describes a range of
acoustic frequencies that are ``most likely to adversely affect'' the
whale's acoustic soundscape.\62\ In doing so, NMFS implicitly
recognizes that sound results in direct impacts to individuals and that
the absence of sound is not a habitat feature that can be ``found'' in
a specific geographic location.
---------------------------------------------------------------------------
\61\ 16 U.S.C. Sec. 1532(5)(A)(i).
\62\ 88 Fed. Reg. at 47,461.
---------------------------------------------------------------------------
In recent years, NMFS has declined to identify the absence of sound
as a PBF for a variety of species, despite recognizing the significance
of in-water sound to those species.\63\ Nor has NMFS identified the
absence of sound as a PBF for any other baleen whale, including the
North Pacific right whale, the North Atlantic right whale, or any of
three populations of humpback whale.\64\ In fact, NMFS specifically
rejected requests to identify the absence of sound as an element of
critical habitat for the Southern Resident killer whale because the
effects of sound ``are direct effects to the animal itself and not to
its habitat.'' \65\
---------------------------------------------------------------------------
\63\ See 88 Fed. Reg. 46,572 (July 19, 2023) (green sea turtle
(proposed rule for six distinct population segments)); 87 Fed. Reg.
19,180 (Apr. 1, 2022) (bearded seal); 87 Fed. Reg. 19,232 (Apr. 1,
2022) (ringed seal); 86 Fed. Reg. 21,082 (Apr. 21, 2021) (humpback
whale); 86 Fed. Reg 41,668 (Aug. 2, 2021) (Southern Resident killer
whale).
\64\ 73 Fed. Reg. 19,000 (Apr. 8, 2008) (North Pacific right
whale); 59 Fed. Reg. 28,793 (June 3, 1994) (North Atlantic right
whale); 86 Fed. Reg. 21,082 (Apr. 21, 2021) (humpback whale).
\65\ Endangered and Threatened Species; Designation of Critical
Habitat for Southern Resident Killer Whale, 71 Fed. Reg. 69,054, 69,055
(Nov. 29, 2006). NMFS previously used the term ``primary constituent
element'' or ``PCE,'' which has the same meaning as PBF. See Listing
Endangered and Threatened Species and Designating Critical Habitat;
Implementing Changes to the Regulations for Designating Critical
Habitat, 81 Fed. Reg. 7,414, 7,426 (Feb. 11, 2016) (change in
terminology from PCE to PBF ``is not intended to substantively alter
anything about the designation of critical habitat'').
---------------------------------------------------------------------------
Second, the purpose of the ESA's critical habitat provision is to
identify and locate geographically those ``specific areas'' in which
essential ``physical or biological features'' are found.\66\ These
features must be characteristics that can be located within the
critical habitat area at the time of designation.\67\ Yet the Proposed
Rule does not describe specifically where ``sufficiently quiet
conditions'' currently exist (or do not exist) within the proposed
critical habitat area.\68\ Moreover, as NMFS acknowledges, the
westernmost sites within the core area studied by Soldevilla et al.
(2022b) are ``not far from a major shipping fairway and vessel traffic
noise was common in the recordings at those sites.'' \69\ Therefore,
the ``quiet conditions'' that NMFS seeks to protect demonstrably are
not ``found'' in some areas of the proposed critical habitat area, nor
are they identified with any specificity as required by the ESA.
---------------------------------------------------------------------------
\66\ 16 U.S.C. Sec. 1532(5)(A)(i); see also 50 C.F.R.
Sec. 424.12(b)(1)(iii) (requiring determination of ``the specific areas
within the geographical area occupied by the species that contain the
physical or biological features essential to the conservation of the
species''); 81 Fed. Reg. at 7,420 (in designating critical habitat,
NMFS and U.S. Fish and Wildlife Service will determine which areas
``contain'' the features essential to conservation of the species).
\67\ See Cape Hatteras, 344 F. Supp. 2d at 122-23 (U.S. Fish and
Wildlife Service must observe essential feature in critical habitat
area at the time of designation).
\68\ See 88 Fed. Reg. at 47,461; Critical Habitat Report at 15.
\69\ 88 Fed. Reg. at 47,457 (noting the apparent presence of
shipping and airgun sound in this area).
---------------------------------------------------------------------------
Third, marine sound is a complex and dynamic phenomenon that is
heavily affected by salinity, pressure, and natural temperature
gradients the further away the water column is from heat sources such
as the sun. Cetaceans such as Rice's whales are known to utilize and
exploit sound layers and gradients to their advantage in hunting and
hiding from potential harm.\70\ To characterize ``sufficiently quiet
conditions'' as an ``attribute'' or element of Rice's whale critical
habitat demonstrates a concerning lack of scientific understanding of
how cetaceans are known to utilize both layers and areas of the ocean
that are both quieter and less quiet than the average.
---------------------------------------------------------------------------
\70\ See Richardson, W. J., C. R. Greene, Jr., C. I. Malme, and D.
H. Thomson. 1995. Marine mammals and noise. Academic Press, San Diego,
CA.; Southall, B.L., D.P. Nowacek, A.E. Bowles, V. Senigaglia, L.
Bejder, P.L. Tyack. 2021. Marine Mammal Noise Exposure Criteria:
Assessing the Severity of Marine Mammal Behavioral Responses to Human
Noise. Aquatic Mammals 47(5): 421-464.
---------------------------------------------------------------------------
G. NMFS's economic analysis is inconsistent with its own assumptions
and fails to account for significant project modifications and
other economic costs resulting from a critical habitat
designation.
Before designating habitat, ESA section 4(b)(2) ``imposes a
categorical requirement that the Secretary tak[e] into consideration
economic and other impacts before such a designation.'' \71\ NMFS must
consider the economic impact of a designation and may exclude areas
from the designation if the benefits of exclusion outweigh the benefits
of designating the area.\72\ Specifically, section 4(b)(2) of the ESA
requires NMFS to consider the economic impact of designating an area as
critical habitat by comparing impacts with and without the critical
habitat designation (the ``4(b)(2) Analysis'').\73\
---------------------------------------------------------------------------
\71\ Weyerhaeuser, 139 S. Ct. at 371 (brackets in original;
internal quotation marks and citation omitted).
\72\ 16 U.S.C. Sec. 1533(b)(2); 50 C.F.R. Sec. 424.19(b).
\73\ 16 U.S.C. Sec. 1533(b)(2).
---------------------------------------------------------------------------
NMFS provides the 4(b)(2) Analysis in its Critical Habitat
Report,\74\ which is also summarized in the Proposed Rule.\75\
Unfortunately, NMFS's 4(b)(2) Analysis falls materially short of the
statutory and regulatory requirements by dismissing the potential for
substantive modifications to federally permitted activities and
associated economic costs.\76\ The proposed critical habitat
designation will cause such modifications and, in fact, has already
resulted in such modifications, as described below.
---------------------------------------------------------------------------
\74\ Critical Habitat Report at 21-56.
\75\ 88 Fed. Reg. at 47,463-67.
\76\ Critical Habitat Report at 35 (proposed critical habitat
``will not change the outcome of Section 7 consultations, and
additional project modifications will not be necessary''); id. at 39
(``[W]e anticipate that incremental costs associated with oil and gas
exploration and production as a result of the Rice's whale critical
habitat will be limited to administrative costs of consultation.'').
---------------------------------------------------------------------------
The Proposed Rule identifies federally permitted oil and gas
exploration and development as an activity that has the potential to
affect essential features of the Rice's whale proposed critical
habitat.\77\ NMFS cites to these and other activities in reaching a
conclusion that the critical habitat designation is necessary to
provide ``special management considerations or protections'' to Rice's
whale habitat.\78\ Specifically, NMFS states that ``conservation
measures might be required in the future through section 7
consultations on particular proposed Federal actions,'' including
energy development activities.\79\ NMFS describes energy development as
one activity that could ``result in the need for special management or
protections of the essential feature'' of the proposed critical
habitat.\80\
---------------------------------------------------------------------------
\77\ 88 Fed. Reg. at 47,464.
\78\ Id. at 47,461-62 (providing analysis under 16 U.S.C.
Sec. 1532(5)(A)(i)); see also Critical Habitat Report at 16.
\79\ 88 Fed. Reg. at 47,462.
\80\ Id.
---------------------------------------------------------------------------
Despite this, NMFS concludes that the Proposed Rule ``is not
anticipated to result in incremental project modifications.'' \81\ NMFS
appears to base this conclusion in relevant part on an assumption that
most project modifications resulting from an ESA section 7 consultation
would already be required to protect the species and therefore cannot
be attributed solely to the designation of critical habitat.\82\ As a
result, NMFS asserts that it does ``not expect designation of critical
habitat for the Rice's whale to result in project modifications for any
of the activities that may affect the critical habitat . . . so long as
such actions do not result in the destruction or adverse modification
of critical habitat.'' \83\ Indeed, NMFS estimates the overall
incremental costs to all activities from the critical habitat
designation at merely $37,000 in annualized costs.\84\ NMFS cannot
rationally conclude that modifications to energy development activities
are both necessary to manage and protect habitat and that the critical
habitat designation will not result in significant changes to those
same activities.\85\
---------------------------------------------------------------------------
\81\ Id. at 47,467.
\82\ Id. at 47,464 (``When the same modification would be required
due to impacts to both the species and critical habitat, there would be
no additional or incremental impact attributable to the critical
habitat designation beyond the administrative impact associated with
conducting the critical habitat analysis.''); see also Critical Habitat
Report at 34.
\83\ 88 Fed. Reg. at 47,465.
\84\ Critical Habitat Report at 22.
\85\ Although NMFS is not correct that designation of Rice's whale
critical habitat will result in no new requirements, if it were
correct, then its determination under 16 U.S.C. Sec. 1532(5)(A)(i) that
``special management measures'' are needed to protect essential
features is arbitrary. See 88 Fed. Reg. at 47,461-62. Congress
certainly did not intend for NMFS to meet its obligation under that
provision by merely asserting that measures may be needed while also
knowing that the critical habitat designation will not require such
measures. In short, NMFS cannot rationally conclude that both economic
costs from the designation are de minimis and special management
measures may be required.
---------------------------------------------------------------------------
In addition, NMFS's caveat that project modifications are not
expected ``so long as such actions do not result in the destruction or
adverse modification of critical habitat'' \86\ exemplifies NMFS's
failure to analyze the very scenarios that the statute contemplates
could result in economic costs--i.e., where measures may be imposed
because an action may destroy or adversely modify critical habitat. As
NMFS understands, a proposed action that is expected to result in
destruction or adverse modification of critical habitat may not move
forward as originally proposed. Instead, either (1) the action agency
or applicant will modify the proposed action to bring potential impacts
of a proposed action under the ``adverse modification'' threshold,\87\
or (2) NMFS will propose a ``reasonable and prudent alternative,''
which must be adopted by the action agency in order for the activity to
move forward.\88\ Either of these scenarios would require significant
project changes to avoid impacts that purportedly rise to a level of
``adverse modification,'' \89\ but NMFS's 4(b)(2) Analysis entirely
fails to describe the cost or impact of these anticipated modifications
in any way.\90\ This is a material failure and NMFS may not move
forward with a final critical habitat designation without first
analyzing and providing for public review and comment a 4(b)(2)
Analysis that properly considers the full economic costs likely to
result from the proposed designation.
---------------------------------------------------------------------------
\86\ 88 Fed. Reg. at 47,465.
\87\ See 50 C.F.R. Sec. 402.14(g)(8) (requiring Service to take
into account beneficial actions proposed by the action agency or
applicant when formulating its biological opinion). In its 4(b)(2)
Analysis, NMFS calls this the ``incremental impact'' of critical
habitat designation, i.e., ``the extent to which Federal agencies
modify their proposed actions to ensure they are not likely to destroy
or adversely modify the critical habitat beyond any modifications the
agencies would make because of listing and the requirement to avoid
jeopardy to the Rice's whale.'' 88 Fed. Reg. at 47,464; see also
Critical Habitat Report at 21.
\88\ 16 U.S.C. Sec. 1536(b)(3)(A) (``If jeopardy or adverse
modification is found, the Secretary shall suggest those reasonable and
prudent alternatives which he believes would not violate'' section
7(a)(2), the prohibition against jeopardy and adverse modification);
Nat. Res. Def. Council v. Zinke, 347 F. Supp. 3d 465, 476 (E.D. Cal.
2018) (If a biological opinion concludes that the action would
``destroy or adversely modify critical habitat, . . . then the action
may not go forward unless the wildlife agency can suggest a `reasonable
and prudent alternative[]' (`RPA') that avoids jeopardy, destruction,
or adverse modification.'' (brackets in original; citation omitted)).
\89\ ``Adverse modification'' findings are consequential and
necessarily indicate that significant project changes are required in
order for a proposed action to proceed. See Interagency Cooperation--
Endangered Species Act of 1973, as Amended; Definition of Destruction
or Adverse Modification of Critical Habitat, 79 Fed. Reg. 27,060,
27,063 (May 12, 2014) (to adversely modify critical habitat, an action
``must in some way cause the deterioration of the critical habitat's
pre-action condition, which includes its ability to provide recovery
support to the species'').
\90\ See generally 88 Fed. Reg. at 47,464-65; Critical Habitat
Report at 21-56 & 39 (``[W]e anticipate that incremental costs
associated with oil and gas exploration and production as a result of
the Rice's whale critical habitat will be limited to administrative
costs of consultation.''). NMFS's conclusion that the proposed critical
habitat ``will not change the outcome of Section 7 consultations, and
additional project modifications will not be necessary,'' Critical
Habitat Report at 35, directly contradicts its statement that
``conservation measures might be required in the future through section
7 consultations on particular proposed Federal actions,'' 88 Fed. Reg.
at 47,462.
---------------------------------------------------------------------------
Moreover, even in the absence of an ``adverse modification''
finding, a critical habitat designation or proposal can cause federal
agencies to impose new, precautionary measures that are economically
significant and must also be considered. On August 23, 2023, the Bureau
of Ocean Energy Management (``BOEM'') issued a lease stipulation in the
Final Notice of Sales (``FNOS'') for GOMx Lease Sale 261 that includes
burdensome new operating restrictions across a newly defined and vastly
enlarged ``Expanded Rice's Whale Area.'' \91\ This area--which is more
than double the size of the Rice's whale area identified in BOEM's
Proposed Notice of Sale (``PNOS'')--appears to be identical to the area
that NMFS is proposing for designation as Rice's whale critical
habitat.\92\ As BOEM's PNOS did not include these measures, and as they
match the geographic area proposed for critical habitat designation, it
is reasonable to conclude that BOEM added these conservation measures
to its FNOS in whole or in part as a result of NMFS's critical habitat
proposal.\93\ Alternatively, it is reasonable to conclude that any such
measures that are currently not required will become required as terms
and conditions in future biological opinions that are imposed on the
regulated community, as a direct result of the critical habitat
designation.
---------------------------------------------------------------------------
\91\ Final Notice of Sale Gulf of Mexico Oil and Gas Lease Sale 261
Lease Stipulations, Stipulation 4(B)(4) (describing measures required
in ``Expanded Rice's Whale Area'') (``Lease Sale 261 Stipulations'').
These requirements have been preliminarily enjoined. See supra note 3.
\92\ Lease Sale 261 Stipulations at Fig. 1 (identifying the
northeastern GOMx Rice's whale habitat from NMFS's 2020 biological
opinion and a ``Rice's Whale Expanded Area'' that appears to match the
remainder of NMFS's proposed Rice's whale critical habitat
designation); cf. BOEM, Proposed Notice of Sale Gulf of Mexico Oil and
Gas Lease Sale 261 Lease Stipulations, Stipulation 4(B).
\93\ Such measures, added in advance of an ESA section 7
consultation (or, in the present case, a reinitiated consultation) are
referred to by NMFS as ``conservation measures,'' which are actions
incorporated into a proposed action by a federal agency and which
minimize or compensate for project effects. See Critical Habitat Report
at 29.
---------------------------------------------------------------------------
NMFS accurately predicts that the implications of underestimating
the costs of a critical habitat designation are ``[p]otentially
major.'' \94\ Oil and gas activities in the GOMx account for
approximately 15 percent of U.S. crude production and 5 percent of U.S.
dry natural gas production.\95\ At least 2,400 companies across all 50
states are dependent on GOMx-derived production as part of their supply
chain.\96\ In 2023, the GOMx oil and gas industry supported
approximately 412,000 jobs and will generate an estimated $34.3 billion
in gross domestic product and over $6.1 billion in government
revenue.\97\ As demonstrated in Attachment B to these comments,
restrictions on oil and gas activities in the northwestern and central
GOMx, including a 10-knot speed restriction, limitations on transit
from dusk to dawn and during periods of low visibility, and other
restrictions on transiting vessels,\98\ are estimated to cost the oil
and gas industry up to $9.4 billion annually, result in a loss of up to
101,000 jobs, and reduce government revenues up to $8.7 billion
annually.\99\ Furthermore, BOEM has now withdrawn from Lease Sale 261
all acreage falling within this expanded area (for a total of
approximately six million acres),\100\ which also appears to stem from
the proposed critical habitat designation. This represents lost
development opportunities and lost federal and state government
revenues in the range of hundreds of millions of dollars.
---------------------------------------------------------------------------
\94\ Critical Habitat Report at 54.
\95\ U.S. Energy Information Administration, Gulf of Mexico Fact
Sheet (June 21, 2023), https://www.eia.gov/special/gulf_of_mexico/.
\96\ Energy and Industrial Advisory Partners, The Economic Impacts
of the Gulf of Mexico Oil and Natural Gas Industry, at 69-86 (May 26,
2020), https://www.noia.org/wp-content/uploads/2020/05/The-Economic-
Impacts-of-the-Gulf-of-Mexico-Oil-and-Natural-Gas-Industry-2.pdf.
\97\ EIAP (2023) at 4-5.
\98\ Lease Sale 261 Stipulations, Stipulation 4(B)(4).
\99\ EIAP (2023) at 2, Table 1.
\100\ See Final Gulf of Mexico Oil and Gas Lease Sale 261 27
September 2023 Stipulations and Deferred Blocks (map illustrating that
``Extended Rice's Whale Area'' is not among lease tracts offered for
sale and subject to stipulations). This acreage withdrawal has also
been preliminarily enjoined. See supra note 3.
---------------------------------------------------------------------------
NMFS must evaluate the economic and other relevant impacts of these
conservation measures in a revised proposal, and propose any warranted
exclusions based on that new analysis, before finalizing Rice's whale
critical habitat. Failure to do so will violate the ESA's requirement
to consider the economic impact of designating an area as critical
habitat by comparing impacts with and without the critical habitat
designation.\101\ But at the very minimum, if NMFS evades its ESA
responsibilities and proceeds with a final designation without a full
assessment of the economic costs, the proposed designation of critical
habitat across the central and northwestern continental shelf and slope
of the GOMx should be excluded from the designation.\102\ It cannot be
disputed that designation of critical habitat across that area will
result in significant impacts, and thus costs, to many industries and
thousands of vessels that transit that area every day. The Proposed
Rule identifies no benefits to designating that area as ``critical
habitat'' and, as explained above, actually demonstrates that there are
no such benefits given the extremely rare and questionable Rice's whale
detections (much less demonstration of essential features) in that
area. Therefore, even the de minimis costs NMFS has found, much less
the actual costs that will be incurred, outweigh any benefits of a
designation of the central and northwestern shelf and slope of the
GOMx.\103\
---------------------------------------------------------------------------
\101\ 16 U.S.C. Sec. 1533(b)(2); 50 C.F.R. Sec. 424.19(b).
\102\ NMFS has also failed to prepare a Statement of Energy Effects
as required by Executive Order No. 13,211. See Exec. Order No. 13,211
(May 18, 2001) (Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use).
\103\ The Associations want to make clear that they vigorously
oppose designation of that area in the first place, for the reasons
stated elsewhere in this letter.
---------------------------------------------------------------------------
IV. CONCLUSION
For the reasons set forth above, the Proposed Rule is overbroad,
not based on the best available science, and arbitrary and capricious,
in violation of the APA and the ESA. The Associations request that NMFS
withdraw the Proposed Rule and reissue a proposed rule that complies
with the APA, the ESA, and NMFS's implementing regulations.
We appreciate your consideration of these comments. Please do not
hesitate to contact the undersigned with any questions.
Sincerely,
Holly Hopkins Erik Milito
Vice-President, Upstream
Policy President
American Petroleum
Institute National Ocean Industries
Association
Dustin Van Liew Dan Naatz
Vice President, Global
Policy & Government Affairs COO and SVP of Government
Relations and Political Affairs
EnerGeo Alliance Independent Petroleum Association
of America
*****
This letter along with all the attachments can be viewed on the
Committee Repository at:
https://docs.house.gov/meetings/II/II13/20231025/116441/HHRG-
118-II13-20231025-SD007.pdf
------
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
*****
The full report can be viewed on the Committee Repository at:
https://docs.house.gov/meetings/II/II13/20231025/116441/HHRG-
118-II13-20231025-SD008.pdf
------
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The full report can be viewed on the Committee Repository
at:
https://docs.house.gov/meetings/II/II13/20231025/116441/HHRG-
118-II13-20231025-SD009.pdf
------
Questions Submitted for the Record to Alexandria E. Loureiro, PhD,
Scientific Director, EnerGeo Alliance
Questions Submitted by Representative Carl
Question 1. I would like to address a matter of significant concern
related to the potential negative consequences resulting from the Biden
administration's leasing plan, particularly Lease Sale 261, which
affects the Gulf of Mexico. It has come to our attention that the
proposed regulations for Rice's whale critical habitat may not be based
on sound scientific evidence, potentially leading to massive impacts in
the oil and gas industry. Given the apparent lack of a strong
scientific foundation for the proposed regulations on Rice's whale
critical habitat, what steps do you believe are firmly rooted in sound
science and protect both the environment and industry interests?
Answer. The EnerGeo Alliance and its members agree that the
proposed Rice's whale critical habitat designation does not rely on the
best available science and merits reevaluation. I came to that
conclusion after a careful scientific review of all the available data
regarding Rice's whales in the Gulf of Mexico. Below, I first summarize
my scientific findings. I then describe the appropriate measures that
should be applied, based on sound science.
Designation of 28,000 square miles throughout the Gulf of Mexico as
critical habitat for 51 individuals--550 square miles per animal--is
overly broad and does little to enhance conservation of the species.
Historical detection data from Protected Species Observers in the Gulf
of Mexico indicate that only one Rice's whale was reported for every
12,951 hours of observation. Further, these observations were not
confirmed, and, given that a second study indicated a nearly 70% error
rate (i.e., only three in ten reported Rice's whales were in fact
Rice's whales), these sightings become even more rare. By comparison,
detections of other protected species occur about once per every 50
hours of observation.
Acoustic detections, presented as evidence of Rice's whale presence
outside of the De Soto Canyon, clearly indicate a much lower rate of
detection in the western Gulf of Mexico. Call detection rates at the
Flower Garden West site were the highest reported outside of the De
Soto Canyon, and the detection rate was 34 times lower than the
detection rate within the De Soto Canyon. Detection rates were even
lower at the other sites, and, importantly, zero calls were detected at
the central site in over 9,000 hours of observation.
The best available data therefore do not suggest substantial
presence of Rice's whales outside of the De Soto Canyon, much less the
presence of ``essential'' Rice's whale habitat features outside of the
De Soto Canyon. Although a critical habitat designation itself does not
impose new measures, it could cause the agency to impose new measures
in the designated area, as evidenced by BOEM's attempt to impose lease
stipulations in the same area that has been proposed for critical
habitat designation. Imposition of speed and transit restrictions in
this area will not substantively improve the conservation of the
species. However, such measures are likely to increase the number of
interactions with other species by keeping vessels at sea for
protracted periods of time. Further still, extending the duration of
surveys will increase environmental emissions from operations,
contributing to broader global climatological effects. Thus, such
restrictions will cause more harm than good for both the environment
and industry. Indeed, NOAA Fisheries recently concluded as much by
declining a petition to establish a Rice's whale speed restriction for
all vessels inside and outside the De Soto Canyon.
The types of measures that are most consistent with the best
available science are risk- and evidence-based mitigation measures,
including the use of Protected Species Observers and Passive Acoustic
Monitoring Operators during geophysical surveys, and endeavoring to
maintain separation from sighted animals when doing so would not
present a risk to human safety. The energy geoscience industry already
employs these measures in the Gulf of Mexico. Additional measures such
as speed restrictions may be appropriate in areas that are known to
have a dense concentration of individuals at a certain time. In this
case, the De Soto Canyon is the only area in which Rice's whales are
known to congregate, and NOAA Fisheries has already declined to impose
such a measure on all vessels. Imposing speed limits only on oil and
gas industry vessels is illogical, and would negatively impact overall
conservation efforts.
Question 2. The draft legislation proposed by Congressman Graves is
a step in the right direction to address this issue. What impact do you
believe it could have on mitigating the potential negative consequences
we've discussed today?
Answer. The proposed legislation would appropriately limit the
imposition of reflexive agency actions that are not based on the best
available science. As summarized above, the best available science
shows that Rice's whales rarely inhabit areas outside De Soto canyon
and there is a lack of evidence of Rice's whale ``essential'' habitat
features outside that area. Yet, federal agencies, such as NMFS and
BOEM, have reflexively proposed actions--such as the critical habitat
designation and lease stipulations with vessel speed restrictions--
outside De Soto canyon based on unsupported and speculative
assumptions. There should be an unbiased review of the best available
information and further scientific research to better understand the
range and essential habitat features of the Rice's whale outside De
Soto canyon.
Publication in peer-reviewed literature is a necessary step of the
scientific process. Evaluation by experts and subsequent availability
to the public ensures that high standards are maintained and regulatory
decisions are made based on scientific evidence. That the current
critical habitat proposed rule and lease stipulations rely so heavily
on data that have not yet undergone peer review speaks to the
insufficiency of the proposal.
EnerGeo firmly supports the continuation of Rice's whale research
via partnership with the National Academies of Science, Engineering,
and Medicine to conduct a study to determine the occurrence of Rice's
whales in the region. Rice's whales are indeed an endangered and unique
species, and merit protection based in sound, peer-reviewed science. A
partnership with NAS will facilitate a more complete understanding of
the species. Using these data, regulators can develop additional
mitigation measures that may be needed (if any) and are likely to
benefit the conservation of the species--rather than imposing overly
broad measures that are not likely to conserve Rice's whales and are
far more likely to lead to unintended deleterious effects.
Overly broad restrictions applied to a single industry are not
likely to benefit Rice's whales. However, the uncertainty generated
when restrictions are imposed via an extra-regulatory process (i.e.,
the Stipulated Agreement to Stay Proceedings) will decrease the desire
to invest in American energy. The U.S. Gulf of Mexico produces some of
the lowest emissions oil in the world, and companies are held to the
highest environmental and human safety standards. Driving that
investment to other nations where these standards do not exist will
ultimately lead to far greater environmental harm. The draft
legislation is important because it puts a pause on new agency actions
that are not based on the best available science and requires that the
appropriate scientific steps (such as unbiased research and peer
review) first be taken before any additional actions are taken.
______
Mr. Bentz. Thank you. I thank the witnesses for their
testimony. I will now recognize Members for 5 minutes each for
questions.
Mr. McClintock, you are recognized for 5 minutes.
Mr. McClintock. Thank you, Mr. Chairman.
Mr. Birmingham, your testimony states that treating
individual artificially propagated fish or animals the same as
naturally propagated ones has the potential to facilitate the
conservation and recovery of listed species. How could treating
artificially propagated fish or animals the same as naturally
propagated ones contribute to the conservation and recovery of
a listed species?
Mr. Birmingham. Mr. McClintock, as you pointed out in your
remarks regarding H.R. 520, artificial propagation has the
great potential of improving genetic diversity. As an example,
my experience is primarily in California dealing with fish
species listed under the Act. And I spoke in my testimony about
Livingston Stone National Fish Hatchery.
If you look at their fish hatchery plan, the Fish and
Wildlife Service and NOAA Fisheries makes the point, and I will
quote, if I may, ``Reintroductions contribute to preservation
and conservation by improving spatial structure, productivity,
diversity, and abundance, thereby reducing the likelihood of
extinction of the winter-run Chinook salmon.'' I paraphrased
part of that, the reference to the winter-run salmon. But the
reintroductions that they are talking about in that sentence
are the reintroduction of artificially propagated fish.
The other benefit of artificially propagated species, or
the other way in which it can promote conservation, is dealing
with factors that can't be controlled in a more natural
environment. As an example, in 2022, the winter-run juvenile
population was almost decimated, and everyone thought, well, it
is temperature. NOAA Fisheries did an analysis, and they
ultimately concluded 17 percent of the juvenile mortality was
caused by temperature; approximately 49 percent was caused by
thiamin deficiency, and the thiamin deficiency resulted from
the prey species that salmon were eating in the ocean. And when
the salmon returned, the smolts and fries ultimately suffered
from thiamin deficiency. To treat that, they are utilizing
hatcheries. And without those hatcheries, this is a limiting
factor that couldn't be addressed.
And if I can take more of your time, Mr. McClintock, as an
example, Mr. Roady talked about TVA v. Hill, and what he said
about TVA v. Hill was absolutely correct. But let's talk about,
as Paul Harvey used to say, the rest of the story. What
happened after the Supreme Court's decision in TVA v. Hill?
Congress enacted a statute exempting Tellico Dam from the
Endangered Species Act. Congress thought it was in its purview
to make the decision related to whether or not that dam should
go forward.
So, to save the species, the snail darter, they collected
them, relocated them, and essentially began an artificial
propagation program through the relocation. And, ultimately, I
believe it was in 1985, the snail darter was delisted. So, the
construction of the Tellico Dam did not cause the extinction of
the snail darter because the Services intervened. They were
able to preserve that species.
Mr. McClintock. By the way, it is what we all learned in
high school biology. The greater the genetic diversity, the
more that nature can, through the natural selection process,
select those characteristics that make that species resilient
even in the face of changing conditions. So, if you restrict
that genetic diversity, then you are actually making it more
difficult for that species to adapt. You are actually running
counter to the Endangered Species Act's goals.
Mr. Birmingham. Yes. And as I said in my testimony, H.R.
520 represents Congress making a policy judgment, as opposed to
an administrative agency making a policy judgment. And in the
context of the snail darter, that policy judgment ultimately
did not lead to the extinction of that species.
Mr. McClintock. I yield back.
Mr. Bentz. Thank you. The Chair recognizes Ranking Member
Huffman for 5 minutes.
Mr. Huffman. Thank you, Mr. Chairman.
Professor Roady, I want to ask you about the distinction
between artificial propagation, like hatcheries, as a
conservation tool in situations where you are doing triage to
try to keep a species from going extinct or maybe to
reintroduce it, and using these devices as the destination
essentially, the goal for compliance with the ESA.
Taken to, I guess, an extreme, maybe an absurd extreme, if
you actually thought that artificial propagation was a
sufficient outcome, and destination, and end goal, you could
extirpate any number of species in the wild as long as you were
checking the box and turning up the production meter in the
hatchery enough to hit your numbers. Is that how the ESA was
meant to be interpreted and applied?
Mr. Roady. Thank you for the question, Mr. Huffman, and, of
course, the answer is no. That is not the way it is supposed to
work.
And you are absolutely right. The central flaw, and there
is a distinction between doing a triage, as was done in the
case of the Tellico Dam, and between doing what H.R. 520 would
allow you to do, which is to basically allow these artificially
created creatures to substitute for the wild creatures.
The essential problem, and the reason it runs completely
counter to the Endangered Species Act, is that it overlooks the
most important part of the Act, which is to conserve and
protect the ecosystems in the wild in which these animals live,
to preserve them in nature, as it were. And the salmon is the
perfect example.
If you take out all the wild salmon, you lose that entire
web of life process where the salmon go back to the sea, they
come back, they contribute to the life in the sea. They bring
nitrogen back, way back into Idaho and help the forests grow.
They don't feed the animals along the way. You cut all that out
if you are just using these artificially.
Mr. Huffman. And the ESA is also about habitat, isn't it?
Mr. Roady. Absolutely.
Mr. Huffman. Not just about the numbers game on
populations.
Mr. Roady. Absolutely correct. You have to have the habitat
to support the species.
So, H.R. 520 creates a lot of mischief, I would say.
Mr. Huffman. Now, Mr. Birmingham, I appreciate you bringing
up some conservation success stories where hatcheries played a
really critical role. I agree with you in all of those cases. I
am pretty familiar with the condor that has been reintroduced
in my district. And, of course, we have had conservation
hatcheries provide a very vital triage role in avoiding
extinction for coho and other species.
But I don't hear you saying that hatchery production or
artificial propagation should be treated exactly the same as
wild fish. You are not saying that, are you?
Mr. Birmingham. Well, Mr. Huffman----
Mr. Huffman. In all respects, in the full measure of ESA
compliance.
Mr. Birmingham. What I am suggesting through my testimony
is that it is appropriate for Congress to make a policy choice.
Mr. Huffman. I read your testimony, and I appreciate that,
but you are not suggesting that they should be exactly the same
under the ESA, are you?
Mr. Birmingham. What I am saying is that H.R. 520, from my
perspective, makes a lot of sense. You are absolutely correct.
Mr. Huffman. You don't disagree with me, that there is a
difference between using hatcheries as a tool versus hatcheries
as full compliance, full stop, no need to restore habitat, no
need to do anything else.
Mr. Birmingham. And I have not read H.R. 520 as doing that,
Mr. Huffman.
Mr. Huffman. I do read it as doing that. But I just wanted
to make sure that you and I were not in disagreement.
I want to ask you about the Klamath, because Mr. McClintock
said that the inspiration for this legislation that would treat
hatchery production exactly the same as wild fish was his
opposition to Klamath Dam removal.
Mr. Birmingham, you and I go way back, more years than I
care to count. We have crossed swords occasionally, but my
recollection is that you have never opposed Klamath Dam
removal, have you?
Mr. Birmingham. I have never opposed Klamath Dam removal.
Mr. Huffman. In fact, you supported Prop 1 in California,
did you not, and it provided $250 million for Klamath Dam
removal?
Mr. Birmingham. Well, as you said, Mr. Huffman, you and I
go way back. This water policy expert designation was not
something I chose. It was given to me, apparently, by staff.
Mr. Huffman. I just wanted to get that clarified for the
record.
Dr. Taylor, if I could, because I am running out of time,
we have a bill before us that would pause revising the
biological opinion and the designation of critical habitat for
the Rice's whale indefinitely, potentially, for many years.
Does the Rice's whale have years and years to wait for all of
these hoops to be jumped through before it gets protection?
Dr. Taylor. Yes, the Rice's whale is critically endangered,
according to the IUCN, which means that it is in the emergency
room, and the first thing that has to be done is to stop the
bleeding. And every measure has to be taken, and no measure has
been taken since I started working on this 10 years ago. So,
the timing right now is really critical to actually take some
actions to stem what is happening with this whale.
And if I might just point out that, for species like this
that are so few in number, it is really almost impossible to
tell whether they are decreasing or increasing. It is not a
fair thing to hold that as a piece of evidence that has to be--
--
Mr. Bentz. If you could, wrap up, thank you.
Mr. Huffman. Thank you, Dr. Taylor.
I yield back.
Mr. Bentz. Thank you.
Mr. LaMalfa, you are recognized for 5 minutes.
Mr. LaMalfa. Thank you, Mr. Chairman. I want to pose a
question for Mr. Frazer.
Under the proposed rules, withdrawn under Mr. Newhouse's
bill, when the Secretary is designating critical habitat, they
will no longer need to be reasonably certain that currently
unoccupied habitat will actually meet the needs of a listed
species, or that such unoccupied lands or waters contain
physical or biological features needed for species conservation
and recovery.
Can you describe the new criteria you would use to
designate critical land habitat on a parcel of land that
doesn't actually contain these features and that the Secretary
isn't reasonably certain will actually contribute to recovery?
Mr. Frazer. Thank you, Congressman.
Critical habitat is a recovery tool. It is a requirement
under the statute for us to designate critical habitat, which
are those specific areas that are essential for the
conservation or recovery of the species. And the statute has a
definition that has two prongs, one dealing with the standards
for designating areas that are occupied at the time of listing,
and another that refers to areas that were not occupied at the
time of listing.
The regulations that we finalized in 2019 added those
additional elements that you spoke to for the consideration of
identifying areas that were unoccupied at the time of listing
as critical habitat. So, our revisions that we have proposed
would have our regulations be more closely aligned to statutory
language. Our purpose, though, is to identify those areas that
are essential for conservation, no more and no less, and to do
so on the basis of sound science and following the statutory
direction that we have.
Mr. LaMalfa. How is it sound science if it doesn't meet the
bar of reasonably certain that this habitat would be actually
used by a species?
It sounds like it is a very wide-ranging definition that
will take more and more land into a habitat zone that is now
less useful for other purposes.
Mr. Frazer. As I said, our purpose is to identify those
specific areas that are essential for the conservation of the
species. Our proposed rule talks about first considering areas
that are occupied. It is not a hard and fast requirement that
we do so and exhaust those circumstances.
But most species that are listed are listed because they
have lost habitat, they have declined from their historical
range. And in order for them to recover, we need to re-
establish them in areas where they previously existed and that
were unoccupied at the time of listing. So, to make the
critical habitat designation function as we think Congress
intended, in some circumstances we need to identify unoccupied
areas.
Mr. LaMalfa. Congress intended back in the early 1970s,
huh?
Mr. Frazer. I am sorry, Congressman.
Mr. LaMalfa. Congress intended back in the early 1970s,
that what we have today is something Congress intended back in
the early 1970s.
Mr. Frazer. We are working with the statute that was
enacted 50 years ago. Yes, sir.
Mr. LaMalfa. I can cite one example in my own district.
Elderberry bushes are required to be basically untouched
because an elderberry beetle may come along, even when they
haven't been seen there in who knows how long. So, that is now
critical habitat, and has caused extremely expensive work to
have to be done to critical flood control systems in areas I
represent, and it has taken many, many years to get that work
done because of the idea that an elderberry beetle may come
along.
Mr. Frazer. I can say that critical habitat is a
challenging concept to apply. During my tenure in this job, I
have worked really hard to try to make sense of this concept.
Mr. LaMalfa. Yes, challenging glosses over what real people
have to deal with out there in agriculture and flood control,
and water storage, and all that.
Mr. Birmingham, let me give you a moment here on the
previous questioning. The idea that because you were supporting
Prop 1 in order to build more water storage in California, that
means you are also in favor of tearing down the Klamath dams. I
supported Prop 1, and I am extremely opposed to the continued
destruction of Klamath dams and the other dams that are on the
list of my colleague here to tear down so we don't have water
storage or electricity generation. Would you care to touch on
that?
Mr. Birmingham. Well, you are absolutely correct in terms
of Prop 1 did many things, and people supported it for many
reasons. One of the things that it did was to provide funding
to remove the dams, but it did provide funding for other water
supply projects.
Mr. LaMalfa. $150 million of taxpayer money that could be
applied toward a vague dam removal, yes.
Mr. Birmingham. Yes. But the other point is that H.R. 520
does not say we are going to start ignoring habitat.
Mr. LaMalfa. Right.
Mr. Birmingham. It doesn't say we are going to start
ignoring the other tools identified by Congress to recover
species and to protect habitat. What it says is we are going to
treat the animals whether they are artificially propagated or
naturally propagated, we are going to treat them the same. That
is all it does. It doesn't say forget about habitat.
Mr. LaMalfa. Thank you.
Mr. Birmingham. It doesn't say forget about the other
conservation tools.
Mr. LaMalfa. Thank you.
I yield back.
Mr. Bentz. Thank you. The Chair recognizes Congresswoman
Peltola for 5 minutes.
Mrs. Peltola. Thank you, Mr. Chairman. There are a whole
host of bills here on the agenda. Again, another holistic day,
kind of. The first bill that I want to speak to briefly is
Representative McClintock's bill, H.R. 520.
As an Alaskan, as someone who grew up commercial fishing
for wild Alaska salmon, as an Alaskan who has seen our
Congressional Delegation for decades work very hard to kind of
have Alaskan wild salmon recognized as wild and in a class of
their own, we seem to not be able to have them listed as
organic, because we can't prove that they are eating organic
food, which just seems like an unfair burden to prove that
Alaska wild salmon are organic. They seem like the most
organic, healthy thing you can eat.
But also, as somebody who grew up on a river system that
has seen multiple millions less return of each species, and
seeing the effect that that has on our headwaters, salmon are a
cornerstone species and those marine-derived nutrients that
make it up hundreds of miles, my river is 500 miles long, or
the river I am from, I should say, is about 500 miles long. But
you can see the difference in birds, and trees, and every
living organism is so reliant on those wild salmon getting up
there, and hatchery fish pose a real threat. Our wild salmon
are smaller, and there is a finite carrying capacity.
I know that there is 1950s science out there that says that
the ocean has infinite carrying capacity. But as someone who
has only lived for 50 years, I have seen it devolve before my
own eyes. So, I just want to put a plug in for wild salmon.
And my question is actually for Mr. Beal. And don't worry,
it is a softball.
[Laughter.]
Mrs. Peltola. I wondered if you could talk, I really
appreciated your comments. I appreciated you acknowledging the
subsistence harvesters that your council manages for, as well.
One of the things I have seen in Alaska is that subsistence
harvesters get no kind of disaster relief when there is a
disaster, and we are just fishing to put food on the table. But
there is nothing that acknowledges that loss. And then, for our
commercial users, and processors, and communities, like you
say, it can take years. And I just wonder if you could
elaborate on that.
Mr. Beal. Great, and thank you for the question.
The bill I am talking on today is kind of motherhood and
apple pie. Who doesn't want to speed up, accelerate assistance
to individuals that qualify for it? And the subsistence
fishers, it is difficult to quantify impacts of fishery
disasters. And I think that is one of the hurdles that they
have to overcome to really understand financial or any other
impacts to those individuals of a fisheries disaster.
The fishery disaster approach now is focused on economics.
And from the subsistence perspective, that is a shortcoming of
the current system. And on the commercial side, it is easy to
calculate economic impacts. You have reduced landings, reduced
sale prices, whatever it might be. It is really easy to
calculate those.
But I think that lack of economic impact or ability to
calculate economic impact to subsistence harvesters is one of
the roadblocks in providing the support that they do need.
Mrs. Peltola. Since we have a little over a minute, could
you talk about how challenging it is for commercial fishermen,
and processors, and communities to keep going in the gap, in
that delta between the disaster and when they are reimbursed or
recovered?
Mr. Beal. Yes, I am happy to. It is kind of like an
insurance program on your home. If you had a tragic fire, your
house burned down, you can't wait 2 years, 3 years, up to 7
years for insurance money to come through to rebuild your
house. And it is a similar situation in fisheries. And that is
how long some of these individuals and businesses are having to
wait to get assistance to bridge that gap.
And as I mentioned in my testimony, there are multiple
loans that are being defaulted upon. There are crews that are
being laid off that have to go find other work and multi-
generational businesses that are closing. And if fishermen
aren't able to work in one area, they move to another area. So,
that automatically puts pressure on different stocks and just
shifts thing around.
So, having this money quickly available to folks that are
qualified to receive it will take that pressure off of other
fisheries and prevent future disasters, hopefully.
Mrs. Peltola. Thank you, Mr. Beal. And I also appreciated
you likening it, or comparing it to farmers. If we can
reimburse farmers quickly, we should be able to reimburse
fishermen quickly.
Thank you, Mr. Chairman.
Mr. Bentz. Thank you.
Mr. Graves, you are recognized for 5 minutes.
Mr. Graves. Thank you, Mr. Chairman. I appreciate you all
being here today.
Mr. Frazer and Mr. Beal, I believe you are the two entities
that are here that represent some type of public government
entity, and I want to ask you a question. Do you believe that
if you are carrying out a novel activity, that you should have
some type of public participation or comment, and share some of
the background or science with the base that is attempting to
justify your actions? Does that sound like an appropriate
approach, generally, when you are carrying out government
actions?
Mr. Frazer?
Mr. Frazer. Thank you, Congressman.
I guess it would depend upon the nature of the action. We
do innovative things all the time. Individual biologists can
take a different approach.
Mr. Graves. So, let me see if I can clarify this. I kind of
look at this like a yes or no.
If you are doing something that is entirely new, never been
done before, and you are carrying out some type of regulatory
action generally, and just to let you know, I am not coming
after you on this one, I am just trying to get an
understanding. Generally, I assume, getting some type of public
comment or participation is an appropriate approach,
considering you are a government entity. Is that fair? I am not
going to say 100 percent of the time. Is that generally fair,
and an appropriate approach?
I used to work for a state agency. I benefited from the
public comments. They actually pointed out things in many cases
that I found helpful, helped us to perfect our proposals. Is
that generally your experience, as well?
Mr. Frazer. If the Fish and Wildlife Service is making a
decision or establishing a new practice or a rule that applies
to the public generally, we almost always put it out for public
notice and comment.
Mr. Graves. All right, thank you.
Mr. Beal? Any dissent there?
Mr. Beal. No, not at all. We are in the same spot. We try
to be as open, as transparent, and collect as much public
comment as we can on it.
Mr. Graves. And it is generally appropriate to kind of
share the background in your decision, the scientific evidence,
or what have you, in terms of the background. Is that generally
fair?
Mr. Beal. Yes, we have public hearings up and down the
whole East Coast on any new ideas.
Mr. Graves. Yes, thank you.
Dr. Loureiro, I appreciate you being here today, and I
appreciate your testimony.
We have introduced H.R. 6008, which is the RICE's Act, and
it pertains to the Rice's whale, which is a species of whale
that apparently has been found in the Gulf of Mexico as a
result of a sue-and-settle lawsuit. The Federal Government has
imposed restrictions on 11 million acres of the Gulf of Mexico,
6 million acres related to energy production, 11 million acres
overall boating restrictions and other things that I would
argue actually make things less safe.
This was subjected to no public comment, no scientific
rigor, or anything along those lines is my understanding. Is
that consistent with your understanding?
Dr. Loureiro. Thank you Congressman. To be fair, this was
something that was extra-regulatory. This proposed settlement
agreement was not reviewed extensively. However, the background
literature is still pending peer review. So, the updated model
for this current biological opinion is still undergoing peer
review in the literature.
Mr. Graves. So, the model under which this action may be
justified has been developed, but has not been independently
peer reviewed, has not been subjected to public comment or
participation in the decision. Is that correct?
Dr. Loureiro. The model itself is not subject to peer
review.
Mr. Graves. But the decision, normally you would go through
a regulatory action, you would do a proposed regulatory action,
notice of proposed rulemaking. You would put it out there, you
would get comments, and things along those lines.
Dr. Loureiro. Yes. The decision, the regulatory action
would be subject to public comment.
Mr. Graves. And in this case, as a result of the lawsuit,
you effectively have circumvented that step in the process.
So, going back to the model, the model I found curious--or,
I guess what I will say extrapolation of data. Now, I used to
watch Star Trek every once in a while, and they would do this
teleport thing. I always wanted one of those. You all saw those
little teleport things, come on, you all never watched Star
Trek?
[Laughter.]
Mr. Graves. Come on guys, really? All right, all right. I
am going to take that as a yes.
But the problem is that I understand, from the acoustic
sensors, you have some maybe on the east side of the Gulf, and
you don't have clear signals across the entire Gulf showing
that the whales actually travel across the entire area. They
are apparently, from what I gather from the data, they think
that the whales teleport. Does that technology actually exist?
For example, the Grand Isle sensor didn't show any hits in
regard to the Rice's whale in that area, is that accurate?
Dr. Loureiro. Well, I certainly don't think the whales are
teleporting, but there is something that we are clearly missing
if we have a gap in detections at that Grand Isle site. In
9,000 hours of data, to not record a single detection there is
something here that we are missing.
Additionally, we understand that these animals are
concentrated to the eastern Gulf of Mexico in the DeSoto area.
I completely agree with Dr. Taylor that this species is
critically endangered and merits protection. However, those
protections belong in the DeSoto Canyon, where the animals
live.
Mr. Graves. And I want to be clear, Mr. Chairman, I agree
with the protection of species and don't want to do anything to
harm the species. But I think it is important we protect
habitat that is actually habitat.
I am disappointed to learn that the teleporting technology
is not alive and well today. I was going to go buy one. But I
do appreciate you being here, and I appreciate you giving some
more perspective about the significant gap in habitat compared
to what the Federal agencies have proffered.
I appreciate that, Mr. Huffman. Great work.
I yield back.
Mr. Bentz. Thank you. The Chair recognizes Congresswoman
Hageman for 5 minutes.
Ms. Hageman. Hello, everyone. Thank you, Mr. Chairman.
Mr. Frazer, in court documents filed in 2021 you contended
that, ``As the Services explained in their final rules, the
2019 revisions to the section 4 and section 7 regulations did
not substantively change how the Fish and Wildlife Service
lists species, designated critical habitat, or performs
interagency consultations under the ESA. The revisions
clarified our existing regulations to make them more consistent
with the statutory language, case law, and existing agency
practices.''
If your statement from these documents is accurate, why is
the Service moving forward with revising these rulemakings?
Mr. Frazer. The Endangered Species Act is clearly a
substantive statute, with a lot of people that are interested
in understanding exactly how we carry out our responsibilities.
We have found that the 2019 final rules still leave some
areas that are open to misunderstanding and confusion, both for
our practitioners and the public. Those are the sorts of
changes that we are focusing upon in our current proposal.
Ms. Hageman. Mr. Frazer, in 2013, the now U.S. Fish and
Wildlife Service Director, Martha Williams, authored an article
with other Obama administration officials stating that critical
habitat designations ``have very little impact'' from a
``conservation perspective.'' Do you agree?
Mr. Frazer. I believe that that paper was written when the
Director was in a private capacity, or a non-government
capacity.
Ms. Hageman. Do you agree or disagree?
Mr. Frazer. I find that critical habitat has some value,
limited regulatory impact in most circumstances, but it also
has information value to identify for the public, what areas
are important for recovery.
Ms. Hageman. So, it sounds like you agree with her
statement from 2013, whether she wrote it in a private context
or not. You agree that there is very limited impact that
critical habitat has. Is that correct?
Mr. Frazer. My job is primarily to implement the decisions
that Congress made. They directed us to designate critical
habitat.
Ms. Hageman. Right, but I am asking you a question about
your observations as an employee of the U.S. Fish and Wildlife
Service. What have been your observations?
Mr. Frazer. Our observations are it rarely makes a major
difference in section 7 consultations when we are dealing with
an impact to species, as well.
Ms. Hageman. Well, in light of that, wouldn't you agree
that designating unsuitable areas as critical habitat only
provokes the Supreme Court, alienates landowners, directs our
limited resources to things that don't matter, and actually
distracts from recovering the species? Wouldn't you agree with
that?
Mr. Frazer. We would never be designating unsuitable areas.
We sometimes designate areas that were not occupied at the time
of listing, but all the designations are for areas essential
for recovery of the species.
Ms. Hageman. Well, coming from Wyoming, I would
respectfully disagree.
Mr. Frazier, I would like to ask you a separate question on
section 4(d). This rule gets its name from section 4(d) of the
ESA, which directs the Secretary of the Interior and,
therefore, the U.S. Fish and Wildlife Service, to issue
regulations deemed necessary and advisable to provide for the
conservation of threatened species.
The common thing we hear from the Service is that tailored
4(d) rules are too expensive to do, but nobody ever says how
much they actually cost. Mr. Frazier, how much does it cost for
the Service to develop a tailored 4(d) rule?
Mr. Frazer. That would depend upon the nature of the 4(d)
rule and the species that we are talking about.
Ms. Hageman. Can you give me any kind of ranges?
Mr. Frazer. I don't have that information right on the top
of my head. We would be happy to get back with you.
Ms. Hageman. OK, we will request that additional
information, and I would like to have that because, again,
there is the claim that it is too expensive, but we never get
actual numbers. So, I would like to get real, specific numbers.
Mr. Frazer, the proposed rule removes the directive for the
Secretary to delist a species if it meets the necessary
conditions based on the best available science by replacing the
current requirement that the Secretary ``shall delist'' a
species if it meets that criteria and replaces it with ``It is
appropriate to delist the species if.'' In other words, you are
changing the language and the terminology, and you are taking a
directive and turning it into essentially what is mush, in my
opinion.
The rationale provided by the Service is that this will
remove potential for confusion or concerns that the Service can
or will take immediate action to delist. But this change
appears to be both anti-science and contrary to the
congressional intent of the Endangered Species Act.
If the motivation is truly to provide clarification, why
not just state that public notice and comment will be provided
prior to delisting?
Mr. Frazer. That proposed revision to our listing rules is
one of those areas where there was confusion, so we are seeking
to clarify that through the proposed changes here.
Ms. Hageman. To make it so that, instead of requiring
delisting if the recovery criteria have been met, it will be up
to the Secretary of the Interior as to whether they want to go
forward with the listing. Is that right?
Mr. Frazer. Well, the Secretary has the final say, or
acting through the Director of the Fish and Wildlife Service.
Ms. Hageman. Sure.
Mr. Bentz. I am sorry, the gentlelady's time has expired.
Ms. Hageman. Thank you.
Mr. Bentz. Mr. Duarte, you are recognized for 5 minutes.
Mr. Duarte. Thank you.
Mr. Birmingham, you were the General Manager of Westlands
Water District that is in my district now. I am John Duarte
from California. It is good to have you here.
Mr. Birmingham. Thank you.
Mr. Duarte. You mentioned in your testimony the
socioeconomic impacts of the futile effort to protect and
restore the Delta smelt. Could you elaborate on what those
social impacts were down in the south part of the San Joaquin
Valley, where you worked?
Mr. Birmingham. Yes, and I want to be completely fair
because water supply reductions result from numerous things.
They result from drought, they result from regulation, they
result from implementation of the Endangered Species Act. But
there were times during my career when, even in an average
water year or an above average water year, water supplies were
significantly reduced because of curtailments imposed on the
operations of the Central Valley Project to protect smelt.
And the economics included massive unemployment. Some
cities on the west side of the San Joaquin Valley, including
some in your district, were experiencing unemployment rates in
excess of 40 percent because the people that lived in those
communities worked on farms, the farmers did not plant crops,
they fallowed their fields because they didn't have water to
irrigate.
School districts suffered significant reductions in
enrollment because farm workers who couldn't rely on jobs moved
to other locations, so the enrollment went down and funding for
schools went down.
There was anecdotal information from Sheriff Margaret Mims
about the impact of the economic situation on crime. So, there
were significant socioeconomic impacts that resulted from water
supply because the San Joaquin Valley, your congressional
district, depends on having water available to irrigate crops
so that the farmers can employ people, so the farmers can buy
tractors, can buy new tires, can buy new pickup trucks. And
when they have no water, that economic activity goes away.
And if I may, Mr. Duarte, I would like to take just a
moment because I mis-stated something earlier, and I don't want
to leave the Committee with the impression that I am attempting
to mislead it. I said that the snail darter, I thought, was
delisted in 1985. That was not correct. My memory is not very
good anymore. I believe that it was changed from endangered to
threatened in 1983, and was then ultimately delisted in 2021,
and I wanted to correct that for the record. So, thank you.
Mr. Duarte. Sure. So, some of the socioeconomic impacts.
Are you aware of any spikes in respiratory illness as we turn
the South Valley into a dust bowl?
Mr. Birmingham. Absolutely. The San Joaquin Valley has soil
that contains pathogens that cause what is known as valley
fever. And when fields are fallowed, the dust emitted from
those fields is inhaled. And actually, there are some very
strong correlations between fallowing fields and increases in
respiratory illness associated with valley fever.
Mr. Duarte. And are these advantaged or disadvantaged
populations down in that area, in general?
Mr. Birmingham. They are predominantly disadvantaged
communities. As an example, the City of Firebaugh, which I
believe is in your congressional district, is 99 percent
Hispanic.
Mr. Duarte. My district is 66 percent Hispanic. It is a
Voting Rights Act district. So, I am here to advocate for the
farm workers down in my district that are impacted by these
socioeconomic and human health issues.
Let's also talk about environmental impacts. And after we
are done here in a second I am going to ask you to close and
tell me what wonderful things we did for the Delta smelt and
perhaps the salmon with our Delta policies and water management
policies.
But let's touch really quickly on the groundwater table and
the irrigated landscapes that support habitat of other value,
and then please close with a description of the status of these
targeted species we have sacrificed so much to save.
Mr. Birmingham. As you are alluding to by your question, as
a result of water supply reductions of surface water because of
the implementation of the Endangered Species Act, farmers
shifted to groundwater. That caused significant declines in
groundwater tables. It had impacts for other species like the
San Joaquin Valley kit fox, which is another listed species.
So, there are environmental consequences associated with it
and, frankly, that is one of the issues that we sometimes run
into with respect to the implementation of the Endangered
Species Act. It is species-by-species focused. So, we do
something to protect one species at the potential cost of
another. But as it relates----
Mr. Bentz. Mr.----I am sorry.
Mr. Duarte. Let's close. The only Delta smelt we have left
are ones we are rearing artificially, right?
Mr. Birmingham. Pardon me.
Mr. Bentz. The gentleman's time has expired.
Mr. Duarte. The only Delta smelt we have left today are
artificially reared.
Mr. Bentz. The gentleman's time has expired. I am sorry, I
don't mean to be rude about this, but votes have been called,
and I am the last one to ask questions.
Mr. Birmingham, back to you, just so you don't feel left
out. Mr. McClintock suggested and asked in his bill that a
species in a hatchery be treated the same and perhaps counted
if you are looking for an endangered species.
Well, let's assume that there were a million hatchery fish
of a certain type and two left in the stream that were truly
wild, wild in the sense that in every respect they were
identical to those million in the hatchery, but the fact is
that they are in this stream, in the river, not in the
hatchery. So, they are endangered, as I understand the
discussion of the endangered species. Is that correct, those
two are endangered?
Mr. Birmingham. Yes.
Mr. Bentz. And the fact that there are another million of
them in reality does not matter. Is that correct or not?
Mr. Birmingham. Generally, yes. And I want to say
``generally'' because in some species propagated fish, as an
example, are counted toward the population. That is a change
that resulted because of a judicial decision in Oregon on a
listing of coho. But I think if there are two naturally-
spawning fish and a million hatchery fish, that is not going to
result in the delisting of the species. The species is probably
still endangered or threatened for many, many reasons.
The question becomes are we going to just cut off all
economic activity because of this listing? And as in the case
of the Tellico Dam, Congress decided no, we are not going to
just shut off all economic activity.
Mr. Bentz. Right, I understand that. But what is odd is we
would call this the Endangered Species Act, when in point of
fact it should be called the Endangered Habitat Act, or the
fact that we don't have the fish in the place that we want
them, even though there are 1 million to fish, under my
hypothetical.
Mr. Birmingham. Yes. And if those million fish can
contribute to the natural propagation, or the propagation of
this species--I shouldn't say natural, but the propagation of
these species, then ultimately, it may affect it.
Mr. Bentz. So, forgive me, Mr. Birmingham, I am going to
have to shift over to Mr. Wood in the last 2\1/2\ minutes that
I have left.
Mr. Wood, you had a second idea, then you ran out of time.
And I would like you to expand upon it. It had to do with
critical habitat. And will it help recover the species? Do you
see the link? Tell me about your second concept.
Mr. Wood. Yes, I agree with what has been said by some of
the other witnesses that a lot of species that are listed most
are habitat limited, meaning they are not going to recover
unless we restore or create new habitat for them.
And the problem with critical habitat designation in that
case is that they do nothing to bring that around. Often they
will not trigger any additional regulatory protection or
consultation, but they will lower the value of land and
alienate landowners. And in that way, it can create perverse
incentives to destroy the potential to create habitat in those
areas.
That is what is so disappointing about the proposal is it
provokes conflict that you would have thought after
Weyerhaeuser we were moving beyond, and distracts from the
focus of what are the other tools that are needed if we are
going to restore habitat at the scale that we need if we are
going to save species like the dusky gopher frog. There are 135
frogs left in six sites in Mississippi. It would only take one
catastrophic event in that area to potentially wipe out that
species. Like, if we are going to recover species like this, we
have to create more populations, we have to restore additional
habitat, but that takes positive incentives.
Mr. Bentz. Thank you, and I want to thank all of you for
being here today. I truly appreciate it, and I want to thank
you for your testimony.
The members of the Committee may have some additional
questions for witnesses, and we will ask you to respond to
these in writing. Under Committee Rule 3, members of the
Committee must submit questions to the Subcommittee Clerk by 5
p.m. Eastern on Monday, October 30. The hearing record will be
held open for 10 business days for these responses.
If there is no further business, without objection, the
Subcommittee stands adjourned.
[Whereupon, at 4:58 p.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Statement for the Record
Bureau of Ocean Energy Management
U.S. Department of the Interior
on H.R. 6008
Introduction
The Bureau of Ocean Energy Management (BOEM, Bureau) within the
Department of the Interior (Department) appreciates the opportunity to
provide feedback on legislation related to the Endangered Species Act
(ESA) consultation and Rice's Whale in the Gulf of Mexico.
BOEM is taking a leading role in transitioning the U.S. to a clean
energy future--one that will advance renewable energy, create good-
paying jobs, and ensure economic opportunities are accessible to all
communities. BOEM is working with Tribal Nations; Federal, state and
local governments; underserved communities; ocean users; and key
stakeholders to ensure that any future offshore energy development is
done safely and responsibly and relies on the best available science
and Indigenous knowledge. Together with our partners, we can move
forward with offshore energy development in a way that helps create a
cleaner, more sustainable energy future for our Nation.
The ESA and resulting consultations are fundamental for preventing
the extinction and promoting the recovery of imperiled species, and
conserving the habitats upon which they depend.
The Bureau strongly supports safe and responsible domestic energy
production that relies on the best available science. Accordingly, the
Bureau does not support the goals of H.R. 6008 to prevent enforcement
of the voluntary recommendations in the Notice to Lessees that were
provided as precautionary measures to protect the Rice's Whale in the
Gulf of Mexico. We appreciate the Subcommittee's interest in this topic
and welcome future opportunities to work together on these critical
issues.
Background
On October 25, 2022, BOEM, along with the Bureau of Safety and
Environmental Enforcement (BSEE), formally requested reinitiation of
consultation with National Ocean and Atmospheric Administration (NOAA)
Fisheries on the 2020 Biological Opinion on the federally Regulated Oil
and Gas Program Activities in the Gulf of Mexico (BiOp), pursuant to
Section 7 of the ESA.
The reasons for requesting to reinitiate the consultation included:
(1) reevaluation of the oil spill risk analysis in the BiOp in response
to a new oil spill risk analysis that was performed by BOEM, and (2)
incorporation of conditions of approval developed with NOAA Fisheries
that are related to impact pile driving for Outer Continental Shelf
(OCS) oil and gas activities, and to potential transit of OCS oil and
gas activity vessels through the core Rice's Whale Area that NOAA
Fisheries identified in the 2020 BiOp reasonable and prudent
alternative. The reinitiation request also stated that the Bureaus may
seek to conference on critical habitat for the Rice's Whale if it is
proposed during the consultation. Thereafter, NOAA Fisheries published
a proposed critical habitat designation for Rice's Whale on July 24,
2023, which includes all marine waters between the 100-meter (m) and
400-m isobaths in the Gulf of Mexico from the U.S. Exclusive Economic
Zone boundary off of Texas east to the boundary between the South
Atlantic Fishery Management Council and the Gulf of Mexico Fishery
Management Council.
Additionally, prior to and during the reinitiated consultation
process, new information became available about the occurrence of
Rice's Whales in the Gulf of Mexico, such as evidence that Rice's
Whales may occur in the Expanded Rice's Whale Area (an area generally
defined as between the 100-m and 400-m isobaths in the Gulf of Mexico
eastward from the Texas-Mexico boundary and west of the core Rice's
Whale Area identified in the 2020 BiOp reasonable and prudent
alternative). The reinitiated consultation is ongoing.
Notice to Lessees and Operators
Given this new information regarding the Rice's Whale's range, the
fact that the species is one of the most endangered whales in the world
(51 or fewer mature individuals), and the ongoing reinitiated
consultation, BOEM issued a Notice to Lessees (NTL) on August 21, 2023,
that recommended that lessees and operators in the Gulf of Mexico
implement certain voluntary avoidance and mitigation measures in the
Expanded Rice's Whale Area, until such time as a new or amended BiOp is
issued by NOAA Fisheries and any measures identified by them can be
implemented. These recommendations apply to the area comprising the
northern Gulf of Mexico OCS between the 100-m and 400-m isobaths. This
delineation is based on recent third-party scientific information
indicating that Rice's Whales may occur in portions of this area.
Because the possibility of incidental take of Rice's Whales in the
Expanded Rice's Whale Area cannot be dismissed at this time, these
additional voluntary precautions are warranted.
The recommended voluntary measures within this area include:
training visual observers to monitor the vessel for strike
avoidance,
documenting and retaining records for three years on
details of transit,
having all vessels engaged in oil and gas activities,
regardless of size, maintain 10-knots or less and avoiding
transit through the area after dusk and before dawn, as
practicable and consistent with safe operations,
maintaining a minimum vessel distance of 500-m from Rice's
Whales, and
using an automatic identification system onboard all
vessels 65 feet or greater that are engaged in oil and gas
activity.
The recommendations do not apply when compliance would place the
safety of the vessel or crew, or the safety of life at sea, in doubt.
Implementing precautionary measures in the interim, while consultation
is ongoing, furthers the goals of protecting marine species and
ensuring safe and responsible energy development.
Analysis
H.R. 6008 would prohibit enforcement of BOEM's August 2023 NTL
until a new BiOp is complete according to certain specifications. BOEM
appreciates the Subcommittee's interest in the ESA and in the Bureau's
efforts to support domestic energy production that relies on the best
available science. The Bureau does not support the goals of the bill to
prevent the precautionary measures that were recommended to protect the
Rice's Whale in the Gulf of Mexico. We believe that the recommended
guidance will help protect Rice's Whale while ensuring we meet the
energy needs of the Nation. BOEM defers to NOAA on any relevant Marine
Mammal Protection Act and Endangered Species Act related matters.
______
Statement for the Record
National Marine Fisheries Service
National Oceanic and Atmospheric Administration
U.S. Department of Commerce
on H.R. 520, H.R. 5103, H.R. 5504, H.R. 2990, and H.R. 6008
Chairman Bentz, Ranking Member Huffman, and members of the
Subcommittee, thank you for the opportunity to submit this written
statement. The National Oceanic and Atmospheric Administration (NOAA)
is responsible for the stewardship of the nation's living marine
resources and their habitat. NOAA Fisheries provides vital services for
the nation: sustainable and productive fisheries, safe sources of
seafood, the recovery and conservation of protected species, and
healthy ecosystems--all backed by sound science and an ecosystem-based
approach to management. The resilience of our marine ecosystems and
coastal communities depends on healthy marine species, including
protected species such as whales, sea turtles, salmon, and corals.
H.R. 5504 and H.R. 6008
NOAA Fisheries is responsible for the conservation and recovery of
more than 160 endangered and threatened marine and anadromous species
under the Endangered Species Act (ESA). The goal of the ESA is to
conserve and recover these species and the ecosystems upon which they
depend. To implement the ESA, we rely on the best scientific and
commercial data available. We work with international, Federal, Tribal,
state, and local agencies, as well as nongovernmental organizations and
private citizens. NOAA Fisheries and the U.S. Fish and Wildlife Service
(U.S. FWS) share responsibility for implementing the ESA. NOAA
Fisheries is responsible for most marine and anadromous species. U.S.
FWS is responsible for terrestrial and freshwater species. The two
agencies share jurisdiction for, and work cooperatively to recover,
several species, such as sea turtles, Gulf sturgeon, and Atlantic
salmon.
NOAA Fisheries partners with Federal agencies, states, and
Federally recognized Tribes to advise and collaborate on activities
that might impact endangered and threatened species, marine mammals,
and important marine habitats. This work includes:
Consulting with Federal agencies whose work may affect
important fish habitats that are necessary for the
spawning, breeding, feeding, and/or growth of healthy fish
populations, and working to mitigate impacts.
Consulting with Federal agencies to ensure that their
activities are not likely to jeopardize the continued
existence of endangered and threatened species or adversely
modify or destroy their critical habitats.
Working with Tribal governments on marine mammal
management, conservation, and recovery, including co-
management of subsistence use by Alaska Natives.
Working with Federal agencies, states, and Tribal
governments on the development of fishery management plans.
Working with Federal agencies, states, and Tribal
governments on hatchery activities and the development of
hatchery and genetic management plans.
Working with Federal agencies, states, and Tribal
governments on scientific research permits.
Under Section 7(a)(1) of the ESA, Federal agencies are directed to
implement programs for the conservation of threatened and endangered
species. We assist these agencies with the development of conservation
programs for marine species, and we work with Federal agencies, like
the U.S. Army Corps of Engineers and the U.S. Forest Service, on
training and opportunities to implement proactive conservation actions
that will benefit ESA-listed species and their habitats. Under Section
7(a)(2), Federal agencies must consult with NOAA Fisheries when any
project or action they take might affect an ESA-listed marine or
anadromous species or designated critical habitat to ensure their
activities are not likely to jeopardize the continued existence of
endangered or threatened species or adversely modify or destroy their
critical habitats. The consultation process can vary depending on the
complexity of the project or action. Where possible, NMFS has used
programmatic consultations to streamline the regulatory process by
creating a framework under which numerous individual actions and
permits can be addressed more efficiently.
H.R. 5504 would require NOAA Fisheries to withdraw proposed rules
revising regulations under Section 7 of the ESA on Interagency
Cooperation (88 Fed. Reg. 40753) and Section 4 of the ESA on Listing
Endangered and Threatened Species and Designating Critical Habitat (88
Fed. Reg. 40764). H.R. 5504 would prohibit NOAA Fisheries from taking
any action to finalize, implement, or enforce these proposed rules.
These proposed rules improve NOAA Fisheries' ability to fulfill its
responsibilities under the Endangered Species Act to protect and
recover listed species. They clarify standards for listing, delisting,
and reclassifying species, and improve the interagency consultation
process. NOAA Fisheries opposes H.R. 5504, because it would overturn
these science-based rulemakings that follow the requirements of the
law, and thereby undermine the ESA.
H.R. 520
NOAA has not yet had a chance to adequately review H.R. 520 or
6008, but we look forward to working with the Committee on this
legislation.
H.R. 5103--Fishery Improvement to Streamline untimely regulatory
Hurdles post Emergency Situation Act or the ``FISHES'' Act
In addition, U.S. marine fisheries are the largest in the world--
covering 4.4 million square miles of ocean. We manage fisheries to
support our domestic seafood supply, protect ecosystem health and
sustainability, create jobs and support economic and social benefits,
and provide fishing opportunities for all types of fishermen. The
Magnuson-Stevens Fishery Conservation and Management Act (MSA) is the
primary law governing marine fisheries management in U.S. federal
waters. Key objectives of the MSA are to prevent overfishing, rebuild
overfished stocks, increase long-term economic and social benefits, and
ensure a safe and sustainable supply of seafood.
Fishery resource disaster assistance is administered by the
Department of Commerce through NOAA Fisheries. A fishery resource
disaster is an unexpected, large decrease in fish stock biomass or
other change that results in significant loss of access to the fishery
resource, which may include loss of fishing vessels and gear, for a
substantial period of time, and results in significant revenue loss or
negative subsistence impact due to an allowable cause. The MSA, as
amended by the Consolidated Appropriations Act of 2023, Title II, the
Fishery Resource Disasters Improvement Act (FReDI), provides the
authority and requirements for fishery resource disaster assistance. A
request for a fishery disaster determination is generally made by the
Governor of an affected State, an official resolution of an Indian
Tribe, or an elected or politically appointed executive representative
of an affected fishing community (e.g., mayor, official Tribal
representative, city manager, county executive, etc.). The Secretary of
Commerce (Secretary) may also initiate a review at their own
discretion. The Secretary determines whether the circumstances are
consistent with the MSA and warrant a fishery resource disaster
determination. If the Secretary determines that a fishery resource
disaster has occurred, and there are congressionally appropriated funds
available, then the Secretary may allocate such funds for disaster
assistance. Those funds are administered by the Department of Commerce.
NOAA appreciates Congress' desire to further expedite the fishery
disaster process through H.R. 5103. With the passage of the FReDI, we
are already implementing several process improvements to the program
that we anticipate will result in providing funds to affected
communities more expeditiously once we receive fishery disaster
appropriations. We are currently working through the first few disaster
requests under the new legislation and are not yet able to identify
where or if further process improvements may be needed.
H.R. 2990--National Oceanic and Atmospheric Administration Sexual
Harassment and Assault Prevention Improvements Act
NOAA's critical work is only possible through the efforts of
dedicated people who are committed to the mission of the agency, NOAA's
most valuable resource. Therefore, the prevention of and response to
sexual assault and harassment continue to be a high priority within
NOAA. The provisions introduced in H.R. 2990, the NOAA Sexual
Harassment and Assault Prevention Improvements Act of 2023 align with
NOAA's on-going efforts to ensure adequate support is available for
survivors while fostering an environment of safety to encourage
reporting, including by adding a restricted reporting option so that
survivors can access assistance while preserving privacy and
confidentiality.
Expanding the scope of sexual harassment and sexual assault
reporting to Congress to include equal employment opportunity, a
synopsis of sexual harassment cases, disciplinary action taken in each
case, number of requests for change of work location and number of
requests denied, and number of employees or contractors referred to the
U.S. Coast Guard will result in greater transparency, trend analysis,
and risk mitigation. NOAA whole-heartedly supports the provisions of
The NOAA Sexual Harassment and Assault Prevention Improvements Act of
2023 and look forward to sharing our progress with accomplishing our
prevention and response initiatives to foster an environment free of
sexual assault and sexual harassment.
Conclusion
We appreciate the opportunity to review and work with you on
legislation. The bills being considered at this hearing address many
important issues. We have not been able to review the bills in detail
but would be happy to work with the committee on them.
NOAA is proud to continue to lead the world in conducting ocean
science, serving the nation's coastal communities and economies, and
ensuring responsible stewardship of our ocean and coastal resources. We
wish to work with you to improve conservation and management of our
nation's marine resources. Thank you, Members of the Subcommittee and
your staff for your work to support NOAA's mission.
______
Statement for the Record
U.S. Geological Survey
Department of the Interior
on H.R. 5874
Chairman Bentz and Ranking Member Huffman, thank you for this
opportunity to provide the views of the U.S. Geological Survey (USGS)
on H.R. 5874, the Transboundary Aquifer Assessment Program Act, or TAAP
Act. The TAAP was first authorized by Congress in 2006 and is
implemented by the International Boundary and Water Commission--Mexico
Section; the USGS and its Water Resources Research Institutes located
at the University of Arizona, New Mexico State University, and Texas
A&M; and the Comision Nacional del Agua or CONAGUA.
Background
In the original authorization, certain aquifers which underly the
U.S.-Mexico border are designated as priorities for the TAAP, namely
the Hueco Bolson and the Mesilla aquifers underlying New Mexico, Texas,
and Chihuahua, and the Santa Cruz River Valley and San Pedro aquifers
underlying Arizona and Sonora. In the Mesilla basin, the USGS and its
partners are conducting field studies to establish the aquifer's
physical characteristics, geochemistry, and recharge along the Rio
Grande. This work will support a binational technical working group
that is discussing a framework for a model of the basin. Such a model
has been developed for the Santa Cruz River Valley and San Pedro
basins, and discussions are underway to update the existing model for
the Hueco Bolson basin.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Maps of current TAAP priority aquifers, courtesy Univ. of
Arizona.
In the time since the original authorization of the TAAP,
additional water-use and development along the U.S.-Mexico border in
Arizona and Sonora has highlighted the value of collaborative aquifer
investigations. For example, current cooperation on the ecologically
and culturally sensitive Quitobaquito Hills and La Abra Plain aquifers
is identifying areas of needed investigation. Discussions among the
TAAP partners suggest support for designating them as priorities.
H.R. 5874, TAAP Act
Under the TAAP, the Secretary currently has the authority to
designate additional aquifers under New Mexico and Texas as priorities.
Sec. 2 of H.R. 5874 extends this authority to Arizona, with the
exception of the Yuma basin. This section also extends the sunset for
the TAAP to 2035.
Reauthorization of the TAAP is important to the ongoing work of the
USGS and its partners. Given discussions with those partners, the USGS
supports the expansion of authority to designate priority TAAP aquifers
in Arizona.
______
Submissions for the Record by Rep. Bentz
PET ADVOCACY NETWORK
Alexandria, Virginia
October 25, 2023
House Natural Resources Committee
Water, Wildlife & Fisheries Subcommittee
1324 Longworth House Office Building
Washington, DC 20515
Re: Support for H.R. 5504
To Whom it May Concern:
The Pet Advocacy Network appreciates the opportunity to offer our
views regarding H.R. 5504, a bill that would require the Director of
the United States Fish and Wild life Service and the Assistant
Administrator for Fisheries of the National Oceanic and Atmospheric
Administration to withdraw proposed rules relating to the Endangered
Species Act of 1973. As the country's largest pet trade association,
representing the interests of all segments of the pet industry
throughout the United States, the Pet Advocacy Network counts among its
members national associations, organizations, corporations and
individuals involved in the commercial pet trade. More specifically,
the Pet Advocacy Network represents the interests of, pet stores,
suppliers, distributors, pet supply manufacturers, retailers and pet
owners throughout the United States.
Let me start by saying that the Pet Advocacy Network is committed
to conservation. We have for many years provided a well-respected
animal care certification program that is widely utilized by not only
persons in the commercial pet trade but shelters, humane societies and
institutes of higher education as well. Our association has long been
recognized as the voice for a responsible pet trade, and we routinely
advocate legislative and regulatory proposals establishing governmental
mandates where appropriate to advance the public interest and welfare
of pets and the environment. The Pet Advocacy Network works closely
with US Department of Agriculture, Department of the Interior and CITES
to ensure effective enforcement of the Federal Animal Welfare Act,
management of threatened or endangered species and control of invasive
species, and have since its inception. We regularly work with federal
and state agencies as well as local governments to advance animal
welfare and environmental interests.
On June 22, 2023, the U.S. Fish and Wildlife Service, Interior;
National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Commerce published Docket FWS-HQ-ES-2021-0107, a
proposed rule to amend 50 CFR 424.11(b) of the Endangered Species Act
of 1973 and Docket FWS-HQ-ES-2023-0018, a proposed rule to amend
sections 4 and 9 of the Endangered Species Act.
Docket FWS-HQ-ES-2021-0 107 proposes to eliminate the requirement
that an agency consider ``possible economic or other impacts''. While
this may sound like a sensible approach in protecting threatened or
endangered species, it will actually result in agencies basing their
decisions on incomplete data creating a misleading picture of a
proposed species' status. As evidenced by the recent proposal to ban
international trade in the Banggai cardinalfish (Proposed rule NOAA-
NMFS-2023-0099), NOAA's 5-year review not only downplayed international
analysis and management plans (which the United States helped to fund)
but completely ignored the fact that virtually all specimens being
imported into the U.S. come from aquaculture facilities. The fact that
the importation of the Banggai cardinalfish actually aids in the
recovery of the wild populations would not even have been noted by NOAA
had they not been required to conduct an economic analysis and speak to
the pet trade. While economic impacts should certainly not be the sole
basis for a decision on whether to list a species as threatened or
endangered it must be considered in order to make an informed decision.
Docket FWS-HQ-ES-2023-0018 proposes to eliminate the requirement
that the U.S. Fish and Wildlife Service (USFWS) write a 4(d) rule
defining the restrictions in the trade of threatened species and rather
treat them all as endangered. This change would create a situation in
which all threatened species would become de facto endangered species.
Such a change would be inappropriate given the much lower standard for
listing a species as threatened than endangered and needlessly
jeopardizes businesses and livelihoods.
The Pet Advocacy Network requests that you advance HR5504 and
protect species at risk, jobs and Americans' access to companion
animals.
Thank you for your consideration of this request.
Sincerely,
Robert Likins,
Executive Vice President
______
Submissions for the Record by Rep. Huffman
One-pager from the Defenders of Wildlife on the Endangered Species Act
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__
October 24, 2023
Hon. Cliff Bentz, Chairman
Hon. Jared Huffman, Ranking Member
House Natural Resources Committee
Water, Wildlife & Fisheries Subcommittee
1324 Longworth House Office Building
Washington, DC 20515
Honorable Chair Bentz and Ranking Member Huffman,
On behalf of our millions of members and supporters, we are writing
in strong opposition to Rep. Graves' harmful Gulf of Mexico Rice's
whale bill H.R. 6008. This bill prohibits and delays necessary
protections for the critically endangered whale in favor of the oil and
gas industry, which, coincidentally, is largely responsible for the
species' decline. It does so by undermining our bedrock environmental
laws, ignoring the science, and giving industry special influence over
agency decision-making. With only about 50 whales remaining, we cannot
let oil and gas interests, armed with misinformation, obstruct
conservation of one of America's most endangered whales.
The magnificent Gulf of Mexico whale (also known as Rice's whale)
is the only great whale species resident year-round in U.S. waters.
These whales are also acutely vulnerable to vessel strike, as they
spend the majority of their time near the ocean surface--about 90% of
the time at night, when they come to the surface to rest, and 70% of
their time overall. Their natural behavior places them within the draft
of large commercial vessels. In a 2020 Biological Opinion, NOAA found
that mortalities from vessel strikes are likely to exceed--by more than
ten times--what the species can sustain.
The oil and gas industry is a major contributor to vessel strike
risk, contrary to recent statements by the American Petroleum Institute
and other trade associations. NMFS found that the oil and gas industry
represents about one-third of the total risk from vessels transiting
through the whale's habitat. An update by a former Duke University
researcher using the latest data on Rice's whale distribution shows
that industry vessels are responsible for an even larger share: about
40% of the total risk. Furthermore, NMFS estimates that the
catastrophic BP Deepwater Horizon oil spill resulted in the loss of 22%
of the species' population. And the industry's high-energy seismic
blasting is so pervasive that NMFS biologists concluded, in the
agency's most recent Status Review, that it is likely to ``seriously
degrade'' the population by compromising the whales' ability to feed
and reproduce.
Despite knowing the serious threat the oil and gas industry poses
to the whale's survival, this bill aims to undermine measures to
protect the whale. Specifically, the bill:
Interferes with our foundational environmental laws. The
bill would legislate that compliance with the 2020
Biological Opinion is sufficient to comply with the
Endangered Species Act, the Marine Mammal Protection Act,
and all other federal environmental laws until NMFS
publishes a new biological opinion.
Prohibits BOEM from taking measures to protect the whale
even as it opens huge expanses of the Gulf to new oil and
gas leasing. The bill would prohibit BOEM from acting on
the best available and latest science and from implementing
any additional protections for Rice's whales until a new
biological opinion is complete.
Forces delay in protecting one of our most endangered
species. The bill would delay the development and release
of a new Biological Opinion by forcing NMFS to pause its
existing work and to await the release of unnecessary
reports.
Intervenes in ongoing litigation. The bill would undermine
a settlement agreement that requires BOEM to reevaluate
protections for Rice's whale, in light of new information
about oil spill risk and a new, five-year NOAA study of
Rice's whale habitat.
Provides the oil and gas industry with unprecedented
special influence over the agency's decision-making. The
bill would require NMFS to have special private meetings
with industry about any proposed measures in a new
Biological Opinion that may be required to protect Rice's
whales. This will inevitably allow industry to influence
what is reasonable or prudent in their favor.
The 50 remaining Gulf of Mexico Rice's whales cannot afford to pay
the price of this gift to the oil industry extending business-as-usual
in the Gulf of Mexico. If this whale goes extinct, there will be no
other country to blame. As a group of one hundred concerned marine
scientists stated in an open letter last year, ``[u]nless significant
conservation actions are taken, the United States is likely to cause
the first anthropogenic extinction of a great whale species.'' We
cannot let ourselves be the first generation of Americans to let a
great whale go extinct, and all because of greed from oil and gas
companies.
It's not too late to turn the ship around. Join us in opposing this
harmful bill and standing up for our amazing Gulf of Mexico Rice's
whale.
Sincerely,
Animal Legal Defense Fund Natural Resources Defense Council
Animal Welfare Institute NY4WHALES
Buffalo Field Campaign NYC Plover Project
Center for Biological
Diversity Ocean Alliance
Clearwater Marine Aquarium
Research Institute Oceana
Coastal Plains Institute Oceanic Preservation Society
Defenders of Wildlife Predator Defense
Earthjustice Resource Renewal Institute
Endangered Species
Coalition Sanctuary Education Advisory
Specialists
Environmental Investigation
Agency Sierra Club
Environmental Protection
Information Center Southern Environmental Law Center
FOUR PAWS USA The #RelistWolves Campaign
Friends of Blackwater, Inc. The Urban Wildlands Group
Healthy Gulf Voices of Wildlife in NH
International Marine Mammal
Project of Earth Island
Institute Western Watersheds Project
Kettle Range Conservation
Group Wild Fish Conservancy
League of Conservation
Voters World Wildlife Fund
Los Angeles Audubon Society Wyoming Untrapped
______
October 24, 2023
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Dear Representatives:
We write to express our opposition to H.R. 5504, To require the
Director of the United States Fish and Wildlife Service and the
Assistant Administrator for Fisheries of the National Oceanic and
Atmospheric Administration to withdraw proposed rules relating to the
Endangered Species Act of 1973, and for other purposes.
Over the past five decades, the ESA has been remarkably successful:
the vast majority of species protected under the Act have not gone
extinct. At the same time, we are facing a global biodiversity crisis.
Human activity has put over a third of the plants and animals in the
U.S. at risk of extinction and biodiversity loss is occurring at an
unprecedented pace. The biodiversity crisis means fewer pollinators for
agriculture, depleted fisheries, and disappearing places like old-
growth forests and wetlands that provide a long-term, low-cost source
of clean air, water and carbon storage. The Endangered Species Act is
the best tool we have to stop extinctions and fight the biodiversity
crisis, and it is vital that we fully implement it.
In June of this year the Fish and Wildlife Service and National
Marine Fisheries Service proposed three draft regulations that respond
to President Biden's direction that the agencies review three 2019
regulations that weakened implementation of the ESA. Harmful provisions
in the 2019 rules included allowing for economic considerations in ESA
listing decisions, contrary to statute, and removing common-sense,
default protections for threatened species upon listing by the Fish and
Wildlife Service.
This legislation attempts to force the Services to leave the 2019
rules in place and would leave us with weaker ESA regulations at a time
when we must be doing everything in our power to fight the biodiversity
crisis and recover species from the brink of extinction. This bill aims
to take decisionmaking authority away from federal biologists and
experts, and to prevent them from taking critical steps to strengthen
ESA implementation. This bill is also a distraction from the real
challenges that we face in fully realizing the potential of the
Endangered Species Act, including a lack of the necessary funding to
support listing and recovery of imperiled species.
We urge you to oppose this harmful bill.
Signed,
American Bird Conservancy Natural Resources Defense Council
American Legal Defense Fund New Hampshire Audubon
American Welfare Institute North Central Washington Audubon
Society
Buffalo Field Campaign NY4WHALES
Center for Biological
Diversity NYC Plover Project
Coastal Plains Institute Ocean Alliance
Defenders of Wildlife Ocean Conservation Research
Earthjustice Oceana
Endangered Species
Coalition Oceanic Preservation Society
Environmental Investigation
Agency Resource Renewal Institute
Environmental Protection
Information Center-EPIC Sanctuary Education Advisory
Specialists SEAS
FOUR PAWS USA Save the Manatee Club
Friends of Blackwater, Inc. Sierra Club
Friends of the Wisconsin
Wolf Southern Environmental Law Center
Great Lakes Wildlife
Alliance The Conservation Angler
Humane Society Legislative
Fund The Humane Society of the United
States
IFAW--International Fund
for Animal Welfare The Urban Wildlands Group
International Marine Mammal
Project of Earth Island
Institute Turtle Island Restoration Network
Kalmiopsis Audubon Society Voices of Wildlife in NH
Kettle Range Conservation
Group Western Watersheds Project
League of Conservation
Voters Wild Fish Conservancy
Los Angeles Audubon Society World Wildlife Fund
National Parks Conservation
Association Wyoming Untrapped
______
October 23, 2023
Re: PLEASE OPPOSE ANTI-ESA BILL H.R. 520
Dear Representative:
On behalf of our organizations and our millions of members and
supporters, we urge you to oppose H.R. 520, ``To amend the Endangered
Species Act of 1973 to provide that artificially propagated animals
shall be treated the same under that Act as naturally propagated
animals, and for other purposes,'' introduced by Rep. Tom McClintock R-
CA. The bill will be included in a hearing expected to be held by the
House Natural Resources Subcommittee on Water, Wildlife and Fisheries
on October 25, 2023.
H.R. 520 would undermine the central purpose of the Endangered
Species Act (ESA)--the conservation of the ecosystems upon which
endangered species and threatened species depend, 16 U.S.C.
Sec. 1531(b). H.R. 520 accomplishes this by prohibiting the Secretary
from distinguishing between naturally propagated animals and
artificially propagated animals in making determinations under the Act.
The bill adds a new Section 14 to the ESA that directs the Secretary to
authorize the use of artificial propagation of animals of a species for
purposes of any mitigation required under the Act with respect to such
species.
The ESA is America's most effective law for protecting wildlife in
danger of extinction. Nearly all species listed under the ESA have been
saved from disappearing forever and hundreds are on the path to
recovery. Species saved from extinction by the ESA include America's
symbol--the bald eagle--as well as the peregrine falcon, the brown
pelican, the American alligator, the humpback whale, and the whooping
crane. Scientists have warned that one million species are facing
extinction in the coming years. At a time when the planet is
experiencing a biodiversity crisis of epic proportions, Congress should
not be considering legislation that guts our best tool for addressing
this rapidly worsening crisis.
Controlled propagation is an essential tool in the conservation of
imperiled species, expressly authorized by Section 3(3) of the ESA, 16
U.S.C. Sec. 1532(3). Propagation is used by the U.S. Fish and Wildlife
Service (FWS), the National Marine Fisheries Service (NMFS) and other
conservation agencies to maintain genetic diversity in small, isolated
populations, to permit scientific research, to supplement wild
populations and to recover depleted populations in secure settings
before reintroducing them to the wild. But as the FWS and NMFS noted in
adopting a formal policy governing the use of controlled propagation,
65 FR 56916 (September 20, 2010), the central purpose of the ESA is to
conserve the ecosystems on which endangered and threatened species
depend, and ``controlled propagation is not a substitute for addressing
factors responsible for an endangered or threatened species' decline.''
The agencies declared that their ``first priority'' is ``to recover
wild populations in their natural habitat wherever possible, without
resorting to the use of controlled propagation.'' Id. Moreover, as the
FWS/NMFS policy makes clear, the use of propagation must be carefully
controlled to avoid transmission of disease or genetic release into
wild populations that may harm their survival.
H.R. 520 would force FWS and NMFS to abandon their carefully
controlled approach to propagation as a conservation tool, forbidding
the Secretary from making any distinction between artificial
propagation and natural propagation and requiring approval of
artificial propagation whenever mitigation is required under the ESA.
Even more alarming, the sweeping language of H.R. 520 would force the
Secretary to treat artificially propagated animals as if they were wild
in making listing determinations and in determining when species have
recovered. Sufficient numbers of fish in a hatchery or of animals in a
zoo could, under this bill, preclude listing such species or force
their delisting even when the species is still headed for extinction in
the wild. The bill would thus destroy the central purpose of the ESA--
conserving the habitats on which endangered and threatened species
depend so that species can thrive in the wild.
Again, we urge you to oppose this damaging legislation. Thank you
for your attention.
Sincerely,
American Bird Conservancy National Parks Conservation
Association
American Humane National Wildlife Refuge
Association
Amigos for Monarchs Native Fish Coalition
Amphibian and Reptile
Conservancy Natural Resources Defense Council
Animal Legal Defense Fund New Hampshire Audubon
Animal Welfare Institute North American Climate,
Conservation and Environment
(NACCE)
Animal Wellness Action North Cascades Conservation
Council
Apex Protection Project North Central Washington Audubon
Society
Azul Northcoast Environmental Center
Bat Conservation
International Northeastern Minnesotans for
Wilderness
Between the Waters Northern California Council, Fly
Fishers International
Binder Park Zoo Northern Front Range Broadband,
Great Old Broads for Wilderness
Born Free USA Northwest Center for Alternatives
to Pesticides
Buffalo Field Campaign NY4WHALES
CalWild Ocean Alliance
Cascadia Wildlands Oceana
Center for a Humane Economy Oceanic Preservation Society
Center for Biological
Diversity OneNature
Central Sierra
Environmental Resource
Center Oregon Natural Desert Association
Christian Council of
Delmarva Partnership for Policy Integrity
Clean Water Action People & Pollinators Action
Network
Coalition on the
Environment and Jewish Life Pilchuck Audubon Society
Conservatives for
Responsible Stewardship Plastic Pollution Coalition
Corazon Latino Predator Defense
Council for the Bighorn
Range Primate Conservation Inc
Defenders of Wildlife Resource Renewal Institute
ECODiversity Rocky Mountain Wild
Endangered Habitats League SAFE Alternatives for our Forest
Environment
Endangered Species
Coalition San Diego Zoo Wildlife Alliance
Environmental Defenders of
McHenry County San Luis Valley Ecosystem Council
Environmental Protection
Information Center-EPIC Santa Barbara Zoo
Farmer Frog Save Our Sky Blue Waters
Fly Fishers International Save Our Wild Salmon Coalition
FOUR PAWS USA Save the Manatee Club
Friends of Blackwater, Inc. Shift Our Ways Collective
Friends of Merrymeeting Bay Sierra Club
Friends of the Earth Sierra Foothills Audubon Society
Friends of the Inyo Sierra Forest Legacy
Friends of the Wisconsin
Wolf Southern Environmental Law Center
Gaviota Coast Conservancy The #RelistWolves Campaign
Grand Canyon Wolf Recovery
Project The Conservation Angler
Great Lakes Wildlife
Alliance The Cougar Fund
Great Old Broads for
Wilderness The Urban Wildlands Group
GreenLatinos The Vocal Seniority
Greenpeace USA The Wei LLC
Harris Center for
Conservation Education Unite the Parks
Heartwood Voices of Wildlife in New
Hampshire
Howling For Wolves Western Nebraska Resources
Council
Humane Action Pennsylvania Western Watersheds Project
Humane Action Pittsburgh Western Wildlife Outreach
IFAW--International Fund
for Animal Welfare WildEarth Guardians
Information Network for
Responsible Mining Wilderness Watch
International Marine Mammal
Project of Earth Island
Institute Wilderness Workshop
IWLA Harry Enstrom Chapter Wildlands Network
Kentucky Heartwood Winter Wildlands Alliance
Kettle Range Conservation
Group Wolf Conservation Center
Klamath Forest Alliance World Animal Protection
Latino Outdoors World Wildlife Fund
League of Conservation
Voters Wyoming Untrapped
Los Angeles Audubon Society Wyoming Wildlife Advocates
Los Padres ForestWatch Xerces Society for Invertebrate
Conservation
Maine Audubon
______
Submissions for the Record by Rep. Donalds
ATLANTIC STATES MARINE FISHERIES COMMISSION
Arlington, Virginia
August 3, 2023
Hon. Bruce Westerman, Chairman
Hon. Raul Grijalva, Ranking Member
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Westerman and Ranking Member Grijalva:
The Atlantic States Marine Fisheries Commission (Commission) is
writing in support of H.R. 5103, the Fishery Improvement to Streamline
untimely regulatory Hurdles post Emergency Situation Act (or FISHES
Act).
The Commission is a Compact of the 15 Atlantic coastal states that
manages nearshore marine fisheries that occupy multiple states' waters.
Congress approved the Compact in 1942 and granted the Commission
management authority in 1984 and 1993 through the Atlantic Striped Bass
Conservation Act and the Atlantic Coastal Fisheries Cooperative
Management Act, respectively. Today, the Commission manages 27 of the
coast's most productive and iconic fisheries, nine of which are
cooperatively managed with our federal partners.
We are thankful for the procedural changes made to fisheries
disaster determinations by the Fishery Resource Disaster Improvement
Act. The FISHES Act is an appropriate next step in addressing further
delays in the process. This bill, should it be enacted into law, would
help us get rapid relief into the hands of those who need it most.
Our member states have experienced significant delays between when
a disaster occurs and when the funding finally reaches affected
stakeholders. Examples of this can be seen with the Atlantic herring
disaster, which affected the greater Atlantic region in 2019, and with
the 2018 Georgia and South Carolina penaeid shrimp disaster. Those
impacted by these events are finally receiving their assistance in
2023.
Five years is far too long for our stakeholders to wait on
lifelines. The FISHES Act helps shorten this timeline in an effort to
make the relief funds relevant to the stakeholders who have suffered.
By imposing a strict timeline on the Office of Management and Budget,
acknowledging their role in the delays, and adding transparency to the
process, this bill would help improve the process and timing of
distributing assistance to those impacted by fisheries disasters. For
these reasons, ASMFC is supportive of the bill.
Please let me or my staff know if you have any questions or if the
Commission can provide any additional information.
Sincerely,
Robert E. Beal
______
GULF STATES MARINE FISHERIES COMMISSION
Ocean Springs, Mississippi
August 8, 2023
Hon. Bryon Donalds
U.S. House of Representatives
1719 Longworth House Office Building
Washington, DC 20515
Dear Congressman Donalds:
On behalf of the Gulf States Marine Fisheries Commission (GSMFC), I
write to you to express our support for H.R. 5103, ``Fishery
Improvement to Streamline untimely regulatory Hurdles post Emergency
Situation Act (FISHES Act).''
The Gulf States Marine Fisheries Commission (GSMFC) is an
organization of Texas, Louisiana, Mississippi, Alabama, and Florida
whose coastal waters are in the Gulf of Mexico. Authorized under Public
Law 81-66, the compact that created the GSMFC was signed by the
representatives of the Governors of the five Gulf States on July 16,
1949.
Working with state agency leadership, commercial and recreational
anglers, and other interested parties, one of the most important
functions of the GSMFC is to serve as a forum for the discussion of
various problems and programs of marine fisheries management, industry,
and research and to develop a coordinated policy to address those
issues for the betterment of the resource and all who are concerned.
One of the major issues we face in the Gulf of Mexico are fisheries
disasters that can cause sudden and unexpected losses, leading to
serious economic impact for fishermen and their communities. In these
instances, a state governor or an elected or duly appointed
representative of an affected fishing community can request a fishery
disaster determination from the Secretary of Commerce.
Unfortunately, the process is quite burdensome and extremely slow,
and funding to the affected fisheries is distributed years after the
impacts which is ineffectual in assisting the affected communities. The
legislation aims to streamline this process so funding is provided in a
timely manner to fishermen and their communities. The GSMFC and its
membership wishes to express their support for requiring the Director
of the Office of Management and Budget to approve or deny spend plans
within a certain amount of time, and are appreciative of the
Congressman's effort to make the fishery disaster determination process
more efficient and timelier.
Please let me know if you have any questions or if GSMFC can
provide any additional information.
Sincerely,
David M. Donaldson,
Executive Director
______
ANGLER ACTION FOUNDATION
Lake Worth Beach, Florida
September 14, 2023
Hon. Bryon Donalds
U.S. House of Representatives
1719 Longworth House Office Building
Washington, DC 20515
Re: FISHES Act
Dear Congressman Donalds:
Please accept my letter of support for the Fishery Improvement to
Streamline untimely regulatory Hurdles post Emergency Situation Act
[FISHES Act].
The intent of this Act--expediting the process of reviewing/
awarding/rejecting federal funding requests related to natural
disasters--will help ensure our fisheries and fishing industry are
better prepared to recover from events that historically devastate both
local fishing businesses (including commercial, charter, and
recreationally based businesses), and the habitats that support the
fisheries.
Regards,
Brett Fitzgerald,
Executive Director
______
FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION
Tallahassee, Florida
October 26, 2023
Hon. Bryon Donalds
U.S. House of Representatives
1719 Longworth House Office Building
Washington, DC 20515
Dear Congressman Donalds:
The Florida Fish and Wildlife Conservation Commission (FWC) is
pleased to support H.R. 5103, the ``Fishery Improvement to Streamline
untimely regulatory Hurdles post Emergency Situation Act'' or the
``FISHES Act.''
H.R. 5103 would improve the fishery disaster assistance process by
establishing a 30-day deadline for the Office of Management and Budget
(0MB) to approve a spend plan.
Historically, the federal fishery disaster assistance process has
been plagued by delays, lack of transparency, and unpredictability from
federal agencies. To improve the process and increase accountability
and transparency, Public Law 117-328 established deadlines for the
National Oceanic and Atmospheric Administration (NOAA) to make
decisions. However, the law did not impose any deadlines on 0MB. H.R.
5103 would establish that much-needed deadline.
The FWC looks forward to working with you to advance H.R. 5103 to
help those affected by fishery disasters.
Sincerely,
Jessica McCawley,
Director
______
Sanibel-Captiva Conservation Foundation (SCCF)
October 26, 2023
Hon. Bryon Donalds
U.S. House of Representatives
1719 Longworth House Office Building
Washington, DC 20515
Re: FISHES Act
Dear Congressman Donalds:
The Sanibel-Captiva Conservation Foundation (SCCF) is a 501(c)(3)
organization dedicated to the protection of the Sanibel and Captiva
Islands and the surrounding coastal areas. As barrier islands situated
in the Gulf of Mexico at the mouth of the Caloosahatchee River, the
community of Sanibel and Captiva understand that our health, economy,
and way of life is inextricably tied to the health of our waters. We
are all too aware of the lasting impact that natural disasters have on
our coastal communities and the fisheries they rely on. Long after a
storm has passed, our communities are left picking up the pieces.
Without expedited support, bolstering and restoring our economies can
be difficult. We work diligently to protect the health of our
fisheries, and our communities understand that strong fisheries and a
strong environment translates to a strong economy. However, in the wake
of a natural disaster, whether it is a major storm or a harmful red
tide, it is impossible to continue to effectively utilize the resource.
In these instances, it is necessary to quickly support the communities
that rely on our fisheries. It is for this reason that SCCF supports
the passage of the Fishery Improvement to Streamline untimely
regulatory Hurdles post Emergency Situation Act (FISHES Act).
After Hurricane Ian our community experienced firsthand the
devastation that follows a natural disaster. The outpouring of support
we witnessed after the storm was truly phenomenal, with State and
Federal agencies working together to ensure that relief made its way to
those in need. However, even with this unified mission, relief could be
slow at times. When a less visible disaster strikes, such as a red
tide, the pace of relief can be even slower. By expediting the federal
fishery disaster relief funding process and enacting a 30-day decision
requirement for OMB to deny or approve the State's spend plan, the time
spent recovering from storms could be reduced, and people could return
to their jobs.
For those who live, work, and play in coastal communities our lives
and livelihoods depend on the resources we utilize and manage. After a
disaster strikes, relief is needed quickly to help communities recover.
Even with relief, rebuilding is a slow and arduous process, but by
passing the FISHES Act one of the hurdles to recovery can be removed.
The passage of this act would help those in need get back on their feet
and return to fishing, guiding, or otherwise utilizing our unique and
healthy fisheries.
Sincerely,
James Evans,
CEO
______
Submissions for the Record by Rep. Newhouse
NATIONAL ASSOCIATION OF HOME BUILDERS
Hon. Cliff Bentz, Chairman
Hon. Jared Huffman, Ranking Member
Water, Wildlife & Fisheries Subcommittee
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Bentz and Ranking Member Huffman:
On behalf of the more than 140,000 members of the National
Association of Home Builders (NAHB), I am writing to express our
support for Rep. Newhouse's H.R. 5504, requiring the Director of the
Fish and Wildlife Service (FWS) and the Assistant Administrator for
Fisheries of the National Oceanic and Atmospheric Administration
(NOAA), (collectively, the ``Services'') to withdraw proposed rules
relating to the Endangered Species (ESA) Act of 1973.
This legislation would maintain the essential regulatory clarity
and certainty sorely needed under the ESA's permitting regime. Among
other beneficial changes enacted in 2019, NAHB supports the following
revisions made: clarifying the definition of ``unoccupied critical
habitat'' and improvements to section 7 interagency coordination
requirements.
Our nation's home builders seek clear and consistently implemented
regulations from the Services when designating critical habitat.
Regrettably, the Services' proposed revisions to critical habitat
designation fails to provide needed consistency nor clarity. The
Administration's proposed revisions for designating critical habitat
removes the obligation to demonstrate areas designated as ``unoccupied
critical habitat'' in fact contains the physical or biological features
needed to support the species.
Moreover, the Supreme Court's Weyerhaeuser ruling found areas
designated as critical habitat (occupied or unoccupied) must actually
be habitat for the species. Locking away swaths of land as ``unoccupied
critical habitat'' because it may be capable of supporting species at
some point in the future is not responsible land management.
NAHB members regularly undertake precautions to avoid impacting
critical habitats. Builders who pull federal permits or receive federal
financing, may be subject to the Services' section 7 interagency
consultation process because the Services deem the activity to impact a
critical habitat. Section 7 consultations are notoriously time
consuming, convoluted, and unpredictable.
The 2019 amendments clarified the analysis used to measure the
effects of an action on a critical habitat to be based on clear and
substantial information, using the best scientific and commercial data
available. This change significantly helped to reduce confusion
surrounding the effects analysis conducted during section 7
consultation.
Disappointingly, the Services are seeking to delete the 2019
changes based on areas of potential confusion; the purported confusion
is only potential, as opposed to actual confusion, and may never occur.
Worse, the proposed changes to reasonable and prudent measures under
the section 7 consultation regulations could allow the Services to
impose compensatory mitigation requirements upon projects undergoing
consultation. This would be a significant expansion of the Services'
authority under ESA and one that Congress has not granted nor addressed
under the statute.
NAHB fully recognizes the crucial balance between protecting our
nation's wildlife and fauna and providing homes for Americans. The
United States is experiencing a housing shortage of 1.5 million units,
with land availability being one of the driving headwinds weighing
production.1,2
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\1\ https://www.nahb.org/news-and-economics/press-releases/2023/08/
boosting-housing-production-can-ease-inflation
\2\ https://eyeonhousing.org/2023/06/for-builders-lot-shortage-
eases-but-is-still-a-problem/
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For these reasons, it is significant to our nation's home building
industry to ensure that the 2019 ESA revisions are retained, and NAHB
calls upon Congress to withdraw the 2023 rules seeking to reverse their
progress. Thank you.
Sincerely,
Lake A. Coulson
Sr. Vice President & Chief Lobbyist
[all]