[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
       
       
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        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

                                 ------                                
                                CONTENTS

                              ----------                              
                                                                   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.

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    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
                    
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    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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \17\ 88 Fed. Reg. 40764 (June 22, 2023).
    \18\ 88 Fed. Reg. 49742 (June 22, 2023).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.'')
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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)
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \32\ See ``Editorial: Rice's whale is a rare Gulf treasure--one 
endangered by oil drilling'' Houston Chronicle (Jan. 24, 2023).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \1\ 16 U.S.C. Sec. 5151
    \2\ 16 U.S.C. Sec. 5101
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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)

---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \19\ See 88 Fed. Reg. 40,742 (June 22, 2023).
    \20\ See 84 Fed. Reg. 44,753, 44,757 (Aug. 27, 2019).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.'').
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                          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.
---------------------------------------------------------------------------
    \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.'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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]
---------------------------------------------------------------------------
    \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:
---------------------------------------------------------------------------
    \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]
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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):
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
    \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/
---------------------------------------------------------------------------
    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]