[House Hearing, 119 Congress]
[From the U.S. Government Publishing Office]
EVALUATING THE IMPLEMENTATION
OF THE MARINE MAMMAL
PROTECTION ACT AND THE
ENDANGERED SPECIES ACT
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON WATER, WILDLIFE AND FISHERIES
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINETEENTH CONGRESS
FIRST SESSION
__________
Wednesday, February 26, 2025
__________
Serial No. 119-10
__________
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
59-414 PDF WASHINGTON : 2025
COMMITTEE ON NATURAL RESOURCES
BRUCE WESTERMAN, AR, Chairman
ROBERT J. WITTMAN, VA, Vice Chairman
JARED HUFFMAN, CA, Ranking Member
Robert J. Wittman, VA Raul M. Grijalva, AZ
Tom McClintock, CA Joe Neguse, CO
Paul Gosar, AZ Teresa Leger Fernandez, NM
Aumua Amata C. Radewagen, AS Melanie A. Stansbury, NM
Doug LaMalfa, CA Val T. Hoyle, OR
Daniel Webster, FL Seth Magaziner, RI
Russ Fulcher, ID Jared Golden, ME
Pete Stauber, MN Dave Min, CA
Tom Tiffany, WI Maxine Dexter, OR
Lauren Boebert, CO Pablo Jose Hernandez, PR
Cliff Bentz, OR Emily Randall, WA
Jen Kiggans, VA Yassamin Ansari, AZ
Wesley P. Hunt, TX Sarah Elfreth, MD
Mike Collins, GA Adam Gray, CA
Harriet M. Hageman, WY Luz Rivas, CA
Mark Amodei, NV Nydia M. Velazquez, NY
Tim Walberg, MI Debbie Dingell, MI
Mike Ezell, MS Darren Soto, FL
Celeste Maloy, UT Julia Brownley, CA
Addison McDowell, NC
Jeff Crank, CO
Nick Begich, AK
Jeff Hurd, CO
Mike Kennedy, UT
Vivian Moeglein, Staff Director
William David, Chief Counsel
Ana Unruh Cohen, Democratic Staff Director
http://naturalresources.house.gov
------
SUBCOMMITTEE ON WATER, WILDLIFE AND FISHERIES
HARRIET M. HAGEMAN, WY, Chair
MIKE EZELL, MS, Vice Chair
VAL T. HOYLE, OR, Ranking Member
Robert J. Wittman, VA Seth Magaziner, RI
Tom McClintock, CA Debbie Dingell, MI
Aumua Amata C. Radewagen, AS Melanie A. Stansbury, NM
Doug LaMalfa, CA Jared Golden, ME
Daniel Webster, FL Dave Min, CA
Lauren Boebert, CO Sarah Elfreth, MD
Cliff Bentz, OR Adam Gray, CA
Jen Kiggans, VA Luz Rivas, CA
Tim Walberg, MI Darren Soto, FL
Mike Ezell, MS Julia Brownley, CA
Celeste Maloy, UT Joe Neguse, CO
Addison McDowell, NC Jared Huffman, CA, ex officio
Jeff Crank, CO
Bruce Westerman, AR, ex officio
------
CONTENTS
----------
Page
Hearing Memo..................................................... v
Hearing held on Wednesday, February 26, 2025..................... 1
Statement of Members:
Hageman, Hon. Harriet M., a Representative in Congress from
the State of Wyoming....................................... 1
Hoyle, Hon. Val T., a Representative in Congress from the
State of Oregon............................................ 3
Westerman, Hon. Bruce, a Representative in Congress from the
State of Arkansas.......................................... 4
Huffman, Hon. Jared, a Representative in Congress from the
State of California........................................ 5
Statement of Witnesses:
Vecchione, John, Senior Litigation Counsel, New Civil
Liberties Alliance, Arlington, Virginia.................... 6
Prepared statement of.................................... 8
Questions submitted for the record....................... 10
Rohlf, Daniel, Professor of Law, Lewis and Clark Law School,
Portland, Oregon........................................... 11
Prepared statement of.................................... 12
Questions submitted for the record....................... 17
Weiland, Paul, Partner, Nossaman LLP, Irvine, California..... 18
Prepared statement of.................................... 19
Questions submitted for the record....................... 23
Moore, Parker, Principal, Beveridge and Diamond PC,
Washington, D.C............................................ 24
Prepared statement of.................................... 26
Additional Materials Submitted for the Record:
Submissions for the Record by Representative Hageman
EnerGeo Alliance, Letter to the Committee................ 67
California Sea Urchin Commission, Letter to the Committee 69
California Pelagic Fisheries Association, Letter to the
Committee.............................................. 70
Mystic Aquarium, Letter to the Committee................. 71
National Marine Manufacturers Association, Letter to the
Committee.............................................. 73
Submissions for the Record by Representative Crank
Letter from multiple conservation organizations to
Colorado Governor Polis and the Colorado Department of
Natural Resources...................................... 52
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To: Committee on Natural Resources Republican Members
From: Water, Wildlife and Fisheries Subcommittee staff: Annick
Miller, ([email protected]), Doug Levine
([email protected]. gov), Kirby Struhar
([email protected]), and Thomas Shipman
([email protected]) x58331
Date: February 24, 2025
Subject: Oversight Hearing titled ``Evaluating the Implementation of
the Marine Mammal Protection Act and the Endangered Species
Act''
________________________________________________________________________
_______
The Subcommittee on Water, Wildlife and Fisheries will hold an
Oversight hearing on ``Evaluating the Implementation of the Marine
Mammal Protection Act and the Endangered Species Act'' Wednesday,
February 26, 2025, at 10 a.m. (EST) in 1324 Longworth House Office
Building.
Member offices are requested to notify Lindsay Walton (lindsay.
[email protected]) by 4:30 p.m. on Tuesday, February 25, 2025, if
their Member intends to participate in the hearing.
I. KEY MESSAGES
The recent Loper Bright Enterprises v. Raimondo decision
reiterates that Congress has the responsibility to reign in
the overreach of executive branch agencies in implementing
laws.
The Endangered Species Act and Marine Mammal Protection
Act are well-intentioned laws that have been exploited by
the federal government and radical environmental
organizations to stifle development and hinder species
recovery.
House Republicans will ensure that federal agencies are
held accountable for their regulatory overreach and will
work to reform these statutes so they are implemented as
Congress intended.
Empowering states, tribes, local governments, and private
landowners in the regulatory decision-making process is the
best path forward for both the health of species and the
sustainability of local communities that coexist with
species.
II. WITNESSES
Mr. Parker Moore, Principal, Beveridge & Diamond PC,
Washington, DC
Mr. Paul Weiland, Partner, Nossaman LLC, Irvine,
California
Mr. John Vecchione, Senior Litigation Counsel, New Civil
Liberties Alliance, Arlington, Virginia
Mr. Daniel Rohlf, Professor of Law, Lewis and Clark Law
School, Portland, Oregon [Minority witness]
III. BACKGROUND
Overview of Loper Bright Enterprises v. Raimondo
On June 28, 2024, the Supreme Court (Court) overruled the so-called
Chevron framework in a case known as Loper Bright Enterprises v.
Raimondo (Loper) in a 6-2 decision.1 Chevron was a judicial
precedent that required courts to defer to agency interpretations of
ambiguous laws. In its decision, the Court ruled that the Chevron
framework violated Section 706 of the Administrative Procedure Act
(APA), which charges the courts with interpreting all relevant
questions of law.2 Accordingly, in its decision, the Court
directed federal courts to exercise independent judgment to determine
how to interpret federal statutes.3
The Loper petition stemmed from a challenge to the National Marine
Fisheries Service (NMFS) and New England Fishery Management Council's
(NEFMC) decision to allow at-sea observers to monitor the Atlantic
herring fishery. The Magnuson-Stevens Fishery Conservation and
Management Act (MSA), the primary law governing federal fisheries,
authorizes NMFS to require observers on fishing vessels to prevent
overfishing and other harmful activities.4 In 2013, the
NEFMC began requiring fishing vessels to pay the costs of monitoring
done by the observers to lower costs for federal agencies, despite MSA
not explicitly giving the NEFMC this authority. This policy was
codified by NMFS in a final rule on February 7, 2020.5 Loper
Bright Enterprises sued NMFS in the U.S. District Court of the District
of Columbia, arguing that NMFS did not have the authority to mandate
the industry fund monitoring of its own fleets.6
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The Chevron framework was named after the landmark case,
Chevron U.S.A., Inc v. Natural Resources Defense Council, Inc, which
was decided by the Court in 1984.7 The Chevron decision was
built on several assumptions by federal courts. First, if Congress
wrote a statute ambiguously, then they intended to delegate
interpretation to federal agencies. Second, agencies have more
expertise than courts in interpreting statutes they administer.
Finally, agencies are accountable to the President and to Congress, so
they have more claim to make policy than courts do.8
Accordingly, Chevron was most applicable when Congress gave a
federal agency the general authority to make rules with the force of
law. In cases where Chevron applied, a federal court would first
determine whether Congress directly addressed the exact issue being
considered by the court. If it was clear that Congress had addressed
the issue, then the court would implement congressional intent.
However, if Congress did not specifically address the issue in statute,
the court would defer to the agency's interpretation of the relevant
statute.9
Overview of the Endangered Species Act
The Endangered Species Act (P.L. 93-205) (ESA or Act) was enacted
in 1973 ``to provide a means whereby the ecosystems upon which
endangered species and threatened species depend may be conserved, to
provide a program for the conservation of such endangered species and
threatened species, and to take such steps as may be appropriate to
achieve the purposes of the treaties and conventions set forth'' in the
Act.10
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This mandate impacts federal agencies, state and local
entities, private organizations, and individuals by covering federal
``actions'' such as funding, permitting, licensing, and the granting of
easements and rights-of-ways. The ESA also prohibits the taking of
listed species, which applies directly to private individuals without
requiring a federal nexus.11
The last time Congress significantly amended the ESA was in
1988.12 Despite these revisions, the main provisions of the
ESA remain intact and govern species conservation efforts today.
Under the current framework, Section 4 charges the U.S. Fish and
Wildlife Service (FWS or Service) and NMFS with reviewing and acting on
petitions to list species as threatened or endangered and designate
their critical habitat.13 Private lands play a significant
role in managing and recovering endangered and threatened species. As
Aldo Leopold put it, ``conservation will ultimately boil down to
rewarding the private landowner who conserves the public
interest.''14 In 2023, the FWS reported that ``two-thirds of
federally listed species have at least some habitat on private land,
and some species have most of their remaining habitat on private
land.''15 For example, according to the Audubon Society more
than 80 percent of the grassland and wetlands that provide essential
bird habitat are in private ownership.16
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The consultation processes required by Section 7 and Section 10
have become a point of concern in recent years with the significant
uptick in the need for new energy transmission projects and federal
water projects. In addition, Section 6 requires the implementing
federal agencies to ``cooperate to the maximum extent practicable with
the States'' in implementing the Act, including ``consultation with the
States concerned before acquiring any land or water, or interest
therein, for the purpose of conserving any endangered species or
threatened species.''17
Litigation and threats of litigation on both substantive and
procedural grounds have significantly increased, upending the listing
and delisting process under the ESA.18 Historically,
Republicans have raised questions over the statute's ambiguity, the
petition and listing process's unscientific timeframes, and the lack of
data transparency supporting decisions.19
Actions taken by the Committee on Natural Resources
During the 118th Congress, the House Committee on Natural Resources
(Committee) held two oversight hearings and three legislative hearings
focused on the ESA, both on species-specific issues and reforming the
Act as a whole. These hearings resulted in eight bills related to the
ESA being favorably reported by the Committee, three of which passed
the House of Representatives. Two of these bills, H.J. Res. 29 and H.J.
Res. 49, also passed the Senate but were vetoed by President Biden.
H.R. 9533, the ``ESA Amendments Act of 2024,'' which was reported
favorably by the Committee in September 2024, would have reauthorized
the Act with a series of reforms. The bill added definitions for the
``environmental baseline,'' as it relates to ESA consultations on
federal projects and the ``foreseeable future'' when determining if a
species is threatened. Each provides regulatory certainty to the public
by limiting agency discretion. The bill also codified into law a
congressionally mandated ESA workplan structure to ease the burden on
the federal government to meet arbitrary timelines that incentivize
litigation by radical environmental organizations. The bill also
contained provisions designed to refocus the Act to its original
intent: to recover listed species. These provisions included:
Creating a structure to delegate more management authority
to states as a species improves
Protecting private landowners from punitive critical
habitat designations when those landowners are already
voluntarily investing in species conservation, and
Preventing judicial review during the five-year monitoring
period post-delisting.
More information on H.R. 9533 bill can be seen HERE.
Recent Actions by the Trump Administration
Since taking office again in 2025, President Trump has signed a
series of Executive Orders (E.O.), several of which contain provisions
related to the ESA. In E.O. 14156, entitled ``Declaring a National
Energy Emergency,'' President Trump directs federal agencies to use
emergency authorities to expedite permitting for energy projects to
``facilitate the Nation's energy supply.''20 Federal
agencies are required to report to the Secretary of the Interior,
Secretary of Commerce, the Office of Management and Budget Director,
the Director of the National Economic Council, and the Chairman of the
Council on Environmental Quality every 30 days on the progress of
permitting energy projects under the ESA during the national
emergency.21
E.O. 14156 also highlights the ESA Committee, sometimes called the
``God Squad.'' The ESA Committee is made up of at least seven members:
the Secretary of Agriculture, the Secretary of the Army, the Chairman
of the Council of Economic Advisors, the Secretary of the Interior, the
Administrator of the National Oceanic and Atmospheric Administration
(NOAA), and at least one individual from each state affected by the
proposed action.22 Section 7(g) of the ESA allows federal
agencies or project applicants to request an exemption from the ESA
Committee during the Section 7 consultation process if a ``jeopardy''
biological opinion is levied against a proposed agency
action.23 E.O. 14156 requires the ESA Committee to meet
quarterly to review any Section 7 exemption applications it has
received.24 If it has not received any applications, it
``shall convene to identify obstacles to domestic energy infrastructure
specifically deriving from implementation of the ESA or the Marine
Mammal Protection Act.''25
For an agency action to receive a ``jeopardy'' biological opinion,
FWS or NMFS must determine the action would jeopardize the continued
existence of the species or adversely modify designated critical
habitat. An exemption from the ESA Committee would absolve the federal
agency or project applicant from any proposed reasonable and prudent
alternatives (RPAs). To grant this exemption, the ESA Committee must:
determine if any RPAs exist for the action, if the benefits of the
action outweigh the benefit of conserving the species, if the action is
of regional or national significance, and if no ``irreversible or
irretrievable commitment of resources'' has been made by the federal
agency or project applicant.26 If the ESA Committee
determines that each of those factors have been met, they can then
grant the exemption. However, if an exemption is granted by the ESA
Committee, it must then establish ``reasonable mitigation and
enhancement measures'' to minimize the adverse effects of the action.
President Trump also highlights the ESA in his E.O. 14181 entitled,
``Emergency Measures to Provide Water Resources in California and
Improve Disaster Response in Certain Areas.''27 The E.O.
also highlights the ``God Squad'' as a potential mechanism to expedite
the operations of the Central Valley Project and the State Water
Project, which deliver water through a series of tributaries and dams
from Northern California to communities in Central and Southern
California.28
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ESA Policy Under the Biden Administration
In addition to President Trump's actions, Interior Secretary Doug
Burgum issued Secretarial Order (S.O.) 3418, titled ``Unleashing
American Energy.''29 S.O. 3418 mandates Assistant
Secretaries within the Department of the Interior to ``suspend, revise,
or rescind'' certain actions by the Biden administration. Three
rulemakings related to the implementation of the ESA that were
finalized in 2024 are also included.30
The Committee has highlighted these ESA rules for their negative
consequences for recovering listed species and their breach of
Congressional intent. The first rule, ``Endangered and Threatened
Wildlife and Plants; Regulations Pertaining to Endangered and
Threatened Wildlife and Plants,'' reinstated the so-called ``blanket
4(d) rule'' for threatened species.31 This authority places
the same ESA protections on threatened species as there are for
endangered species unless otherwise specified in a species-specific
rulemaking. This approach hinders species recovery by effectively
removing positive incentives for affected parties that result in down
listing a listed species and lowering regulatory burdens.
The second rule ``Endangered and Threatened Wildlife and Plants;
Listing Endangered and Threatened Species and Designating Critical
Habitat,'' lowers the bar for agencies to designate critical habitat in
areas that not currently occupied by the species.32
The third rule ``Endangered and Threatened Wildlife and Plants;
Regulations for Interagency Cooperation,'' made changes to how FWS and
NMFS implement Section 7 of the ESA. The rule made changes to the
definition of ``effects of the action'' and ``environmental baseline,''
and revises provisions related to reasonable and prudent measures when
it relates to the incidental take of a listed species.33 Of
particular concern is the elimination of clarifying language that
specified that an effects analysis is limited to aspects of the
proposed action that are ``reasonably certain to occur.''34
Giving the FWS and NMFS wide latitude to review aspects of project
proposals would likely have no impact on the species in question, but
would lead to additional costs and delays in the permitting process.
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The Biden administration also made many consequential listing
decisions during its four years in office. Of particular concern to
many members of the Committee is the difficulty and, in some cases, the
outright refusal to delist recovered species. For example, in the final
days of the Biden administration, the FWS denied petitions from the
states of Wyoming and Montana, which called for the establishment and
delisting of grizzly bears in the Greater Yellowstone Ecosystem (GYE)
and Northern Continental Divide Ecosystem (NCDE) in what are known as
Distinct Population Segments (DPS).35 Second, as a part of
the proposed rule, the Service proposed creating one DPS, where
grizzlies would keep their threatened status, encompassing all six
current grizzly bear recovery zones and the areas around
them.36 The DPS would cover almost the entire land area of
Idaho, Montana, Washington, and Wyoming, despite not having a single
grizzly bear present in much of that area, setting back recovery for
generations.37 This is all despite Idaho, Montana, and
Wyoming dedicating millions of dollars and successfully recovering
grizzly bears to the point where populations in the GYE and NCDE are
approximately double their recovery goals and meeting other federal
recovery metrics.38
Overview of the Marine Mammal Protection Act
The Marine Mammal Protection Act of 1972 (P.L. 92-522) (MMPA) was
enacted ``to conserve marine mammal populations and protect them from
extinction or depletion as a result of human activities.''39
The MMPA, primarily administered by the FWS and NMFS, seeks to conserve
and protect marine mammal populations. It does so, in part, by finding
that marine species ``should not be permitted to diminish below their
optimum sustainable population'' (OSP).40 OSP is defined as
``the number of animals which will result in the maximum productivity
of the population or the species, keeping in mind the carrying capacity
of the habitat and the health of the ecosystem of which they form a
constituent element.''41
In 2000, the MMPA was amended to create the John H. Prescott Marine
Mammal Rescue Assistance Grant Program, which has provided more than
$75 million in grants to 26 states, two territories, three tribes, and
the District of Columbia from 2001 to 2023.42 In 2018,
Congress passed, and President Trump signed in to law, the Endangered
Salmon Predation Prevention Act (P.L. 115-329), which gave the
Secretary of Commerce the authority to authorize take of sea lions in
the Columbia River.43 Before that, the MMPA was last amended
more than 30 years ago in 1994. Those amendments provided a statutory
definition of ``harassment'' as well as criteria for the two levels of
harassment, Level A and Level B.44 Level A harassment is
defined as ``any act of pursuit, torment, or annoyance which has the
potential to injure a marine mammal or marine mammal stock in the
wild,''45 while Level B harassment is defined as ``any act
of pursuit, torment, or annoyance which has the potential to disturb a
marine mammal or marine mammal stock in the wild by causing disruption
of behavioral patterns, including, but not limited to, migration,
breathing, nursing, breeding, feeding, or sheltering.''46
The 1994 amendments also included a requirement to develop stock
assessments ``for each marine mammal stock which occurs in waters under
the jurisdiction of the United States;''47 created a program
to prevent incidental take of marine mammals for commercial
fishing;48 developed exceptions on the take moratorium for
marine mammals;49 and directed the study of how specific
mammals like sea lions and seals impact the nation's federal
fisheries.50
The MMPA, as amended, contains five main titles. Title I focuses on
the prohibition of take of marine mammals, the different mechanisms to
obtain an authorization of take for different types to activities and
develops the federal regulations governing the administration of the
MMPA. Title II establishes the Marine Mammal Commission (MMC) which
provides independent, science-based information addressing human
impacts on marine mammals. Title III establishes the International
Dolphin Conservation program to protect dolphins, whose provisions
largely impact the commercial tuna industry.51 Title IV,
enacted in 1992, created the Marine Mammal Health and Stranding
Response Program. This program helps coordinate emergency responses to
sick, injured, distressed, or dead marine mammals. Finally, Title V
includes provisions for the protection of polar bears and polar bear
management, including the United States' participation in the Agreement
on the Conservation of Polar Bears with Russia, Norway, Denmark, and
Canada.
Title I prohibits the taking or importation of marine mammals or
any products of marine mammals but includes authority for the Secretary
of Commerce and NMFS to issue exemptions and permits for limited take
included in the 1994 amendments. The MMPA defines a take as ``to
harass, hunt, capture or kill, or attempt to harass, hunt, capture, or
kill any marine mammal.''52 It also focuses on maintaining
sustainable populations of marine mammals by directing agencies to
conduct stock assessments, developing recovery plans for depleted
stocks, and providing for the administration of federal regulations
related to the MMPA. Commercial fishing implications of the MMPA are
also covered under Title I, with guidance for incidental takes and
requirements for gear and practices focused on reducing incidental
takes.
Figure 6, shown below, includes the different types of
authorizations issued by federal agencies for incidental and directed
takes of marine mammals.
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MMPA Policy Under the Biden Administration
The Biden administration took several actions using authorities
under the MMPA and ESA that would have resulted in devastating
consequences for coastal communities along the Atlantic coast and the
Gulf of America. First was NOAA's proposed amendments to the North
Atlantic right whale vessel strike reduction rule.53 Since
October 2008, NOAA has had a 10-knot speed restriction for vessels 65
feet and longer.54 While this rule has made progress in
preventing vessel strikes and protecting marine mammals,55
NOAA has experienced challenges in ensuring compliance with
it.56 Later, in 2022, NOAA released a proposed rule that
would have dramatically expanded this speed restriction to vessels as
small as 35 feet.57 In July 2024, a bipartisan coalition of
more than 50 members of the House of Representatives urged the Office
of Management and Budget (OMB) and the Office of Information and
Regulatory Affairs (OIRA) to seek more input before finalizing the
rule.58 After a great deal of pressure, the Biden
administration withdrew the rule in January 2025.59
This rule was developed with NOAA's authorities under the MMPA in
ways that were met with a great deal of criticism. First, Section 404
of the MMPA gives the Secretary of Commerce, acting through NOAA's
Office of Protected Resources, the ability to declare an unusual
mortality event (UME),60 which is defined as ``a stranding
that is unexpected; involves a significant die-off of any marine mammal
population; and demands immediate response.''61 In 2017,
NOAA declared a UME for the North Atlantic right whale.62
The proposed rule states, in part, that whale collisions with vessels
``are a leading cause of the species' decline and a primary factor in
an ongoing Unusual Mortality Event.''63 However,
stakeholders noted that the role of vessel strikes in whale deaths--
particularly for small vessels--was not supported by the statistics to
justify the expanded regulation.64 Additionally, it is worth
noting that in October 2024 it was reported that the North Atlantic
right whale population increased nearly 4 percent from 2020 to
2023.65
MMPA also requires regulatory actions to establish a potential
biological removal (PBR), which is defined as ``the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population.''66 The rule also
established a PBR of 0.7 whales for the East Coast.67
This rule met great opposition from numerous stakeholders operating
along the Atlantic Coast and was the subject of Committee
oversight.68 Many experts viewed the regulatory approach
taken in this instance as an example of NMFS taking an overly cautious
approach to regulating an activity that was not backed up by the best
science and data.
More recently, stakeholders in the Gulf of America have expressed
concern about regulations developed under the MMPA and the ESA that
could drastically harm the oil and gas sector. Whether it is ongoing
concerns with the future of the Biological Opinion for offshore oil and
gas or the Biden administration's proposed critical habitat designation
for Rice's Whale, among others, examining ways that both the MMPA and
ESA can work better will be a critical piece of the Committee's efforts
to enact regulatory reforms that clarify congressional intent and make
our environmental statutes more responsive to the needs of the 21st
century.
Examining the challenges and impact on critical sectors of our
economy like offshore energy production, fisheries management, and
coastal research activities that the MMPA has presented is long
overdue. Notably, several of these provisions have been the subject of
controversy in recent years. For example, Title I allows the Secretary
of Commerce to authorize the ``taking by harassment of small numbers of
marine mammals of a species or population stock''69 provided
that the Secretary finds that it ``will have a negligible impact on
such species or stock.''70 The authorization and
reauthorization of take for some of these activities--whether it's
research activities for fisheries management or offshore energy
production in the Gulf of America--can often be a burdensome process to
navigate and has been subject to litigation. Additionally,
authorizations for both Level A and Level B harassment carry many
different reporting requirements while the permitted activity is being
conducted and after that activity is completed. Determining ways to
make this process clearer is also an area worth exploring, particularly
in a post-Chevron world.
Conclusion
The ESA and the MMPA are two examples of environmental statutes
whose permitting processes have been weaponized against projects
designed to manage our coasts and our fisheries and unleash American
energy resources. In a post-Chevron world, the Committee on Natural
Resources has an opportunity to examine how these statutes have worked
and how they've served as a barrier or hindrance to economic activity.
This hearing will be an essential component of congressional
Republicans' examination of the Federal permitting process.
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OVERSIGHT HEARING ON EVALUATING THE
IMPLEMENTATION OF THE MARINE MAMMAL
PROTECTION ACT AND THE ENDANGERED SPECIES ACT
----------
Wednesday, February 26, 2025
U.S. House of Representatives
Subcommittee on Water, Wildlife and Fisheries
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to notice, at 10:16 a.m., in
Room 1324, Longworth House Office Building, Hon. Harriet
Hageman [Chair of the Subcommittee] presiding.
Present: Representatives Hageman, Wittman, Radewagen,
LaMalfa, Boebert, Bentz, Walberg, Ezell, Maloy, McDowell,
Crank, Westerman; Hoyle, Magaziner, Dingell, Stansbury, Golden,
Min, Elfreth, Gray, Rivas, Soto, Brownley, and Huffman.
Also present: Representative Beyer.
Ms. Hageman. The Subcommittee on Water, Wildlife and
Fisheries will come to order.
I apologize for being a few minutes late. We have what are
called Wyoming Wednesdays, where we try to meet with everyone
in the State within 1 hour.
Good morning, 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 at
hearings are limited to the Chair and the Ranking Member. I
therefore ask unanimous consent that all other Members' opening
statements be made part of the hearing record if they are
submitted in accordance with Committee Rule 3(o).
Without objection, so ordered.
We are here today to hold an oversight hearing entitled,
``Evaluating the Implementation of the Marine Mammal Protection
Act and the Endangered Species Act,'' and I now recognize
myself for a 5-minute opening statement.
STATEMENT OF THE HON. HARRIET M. HAGEMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WYOMING
Ms. Hageman. Article I of the U.S. Constitution grants
Congress the exclusive power to legislate a fundamental
safeguard to prevent the concentration of power in any one
branch of government or unelected bureaucrats. The recent
Supreme Court decision in Loper Bright Enterprises v. Raimondo
marks a critical turning point, reinforcing the principle that
courts should not defer to Federal agencies when interpreting
the law. This ruling is a vital step in restoring the
constitutional balance of power, protecting the due process
rights of our citizens, and ensuring that unelected bureaucrats
no longer have unchecked authority to shape and define
statutory policy at the expense of the American people, and
contrary to congressional intent.
This decision, however, also serves as a plea to Congress
to write better laws. For far too long, this legislative body
has taken the easy way out, writing vague and ambiguous laws
riddled with undefined terms and broad authorities. We must do
better.
Today, we are examining two far-reaching and consequential
laws: the Endangered Species Act, or ESA; and the Marine Mammal
Protection Act, or MMPA, both of which have been
administratively defined and redefined so many times that their
original authors would be hard pressed to recognize their
original hcreations.
While my home State of Wyoming is not directly impacted by
the MMPA, this law impacts industries that are important to all
Americans, not just the coastal States. These include our
fishing industry, ports, maritime transportation, and offshore
energy development. When MMPA was first enacted in 1972, it was
20 pages long. The NOAA document created by the agency that
sets forth criteria just for determining ``negligible impact,''
which is an undefined term in MMPA, is equally as long.
Although well intended at the time it was enacted, MMPA's
ambiguous, outdated, and unclear language has proven
unworkable.
And in Wyoming everyone is directly impacted by the ESA.
Wyoming has 20 ESA-listed species. And while we all know about
the grizzly bear, there are other listed species in Wyoming
such as the Preble's meadow jumping mouse, whose listing has
proven both scientifically and politically controversial.
Strangely enough, the only way to determine if a mouse is a
``Preble's meadow jumping mouse'' is to kill it and measure its
skull. ESA compliance thus requires killing of the very species
that the Fish and Wildlife Service is trying to protect. That
is how far off the rails the ESA has become.
For decades stakeholders in Wyoming and Colorado have
advocated for the delisting of the Preble's meadow jumping
mouse, arguing that it is not a valid sub-species, and this is
not uncommon. An alarming number of species are listed under
the ESA, but do not have what the public would describe as the
best available science backing up those decisions.
Even species that weren't downlisting or delisting are
often caught in a never-ending loop of bureaucracy and
litigation. Species like the razorback sucker, a fish that the
U.S. Fish and Wildlife Service proposed to downlist in 2021 yet
they have never finalized that action, or the Greater
Yellowstone Ecosystem grizzly bear, which has been listed as
threatened since 1975. Its original recovery goal for Wyoming
was set at 500 bears. Today, the population has more than
doubled to 1,100 bears, far exceeding recovery benchmarks. In
fact, the Greater Yellowstone Ecosystem grizzly population has
exceeded recovery goals for over two decades, over two decades.
And despite the success on their way out the door, the Biden
administration further delayed delisting of this species.
There is no denying that after half a century both laws
need improvement, and the Committee intends to do just that.
Changes to the statutes will significantly improve the
regulatory process for both Federal regulators and the
regulated community.
And with that I want to take the time to thank our
witnesses for being here today, and I look forward to a robust
conversation.
I now recognize the Ranking Member, Ms. Hoyle, for her
opening statement.
STATEMENT OF THE HON. VAL T. HOYLE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Ms. Hoyle. Thank you. Good morning, and thank you to all
the witnesses for being here today.
The ESA is popular and effective at preventing extinction.
For over 50 years, the Endangered Species Act has prevented the
extinction of over 99 percent of the species listed. Over 84
percent of Americans support the law. It is the law of last
resort. Species are listed as threatened or endangered once the
best available science shows the species is at risk of
extinction, or without intervention will be at risk of
extinction.
There are claims that the Supreme Court's action
overturning the Chevron deference gives new justification to
roll back the ESA and Marine Mammal Protection Act, but that is
not what the Loper Bright decision does. Loper recognizes the
courts will have final say on the single best meaning of a
statutory provision, which, honestly, should be left to
scientists to establish which species should be listed or
delisted on the Endangered Species Act.
The Endangered Species Act is already clear. Congress'
stated purpose of the ESA is to stop extinction and recover
species. Courts have repeatedly noted these goals. The ESA sets
up a straightforward, science-based process for this: list,
protect, recover, then delist.
Congress has consistently underfunded ESA programs at
Federal agencies for years, contributing to the conflicts over
listing, permitting, and consultation.
The recent Trump administration actions firing tens of
thousands of Federal workers without any strategic analysis as
to the effect on agencies to do consultation, approve permits,
and recover species, is irresponsible, and is another example
of undermining the ability of government to do the work, then
blaming Federal agencies and those workers for not getting the
job done. In fact, even Republicans have rightfully expressed
concerns that permits won't be processed in a timely fashion
because of what has just happened.
We are in a biodiversity crisis, and need these core
conservation laws to work. Recovered species are good for
everyone. And yes, we need to ensure that as endangered species
recover and thrive, that they are delisted in a timely fashion.
However, we should not throw the baby out with the bathwater
and provide more loopholes for industry and fewer guardrails to
protect and recovering species.
I look forward to this discussion today, and I yield back.
Ms. Hageman. Thank you. I now recognize Chairman Westerman
for his opening statement.
STATEMENT OF THE HON. BRUCE WESTERMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARKANSAS
Mr. Westerman. Thank you, Chair Hageman, and thank you to
the witnesses for being here today for a very important
hearing.
The Endangered Species Act and the Marine Mammal Protection
Act, while well-intentioned, and while having done some good
things and produced success over the years, must be refocused
to their original intent. These two laws are designed to
recover listing species and protect marine mammals. They were
not intended to be blunt instruments weaponized against
landowners, the energy sector, both traditional and new
technologies, against the recreational and commercial fishing
industries, against water users and infrastructure projects.
These laws have been used to stop legitimate conservation
efforts, including forest management, to improving salmon
populations on free-flowing streams in tribal lands.
The Supreme Court's decision, as Chair Hageman said, in
Loper Enterprises v. Raimondo, which overturned the Federal
court's deference to Federal agencies' interpretation of broad
laws like the ESA and the MMPA, highlights the responsibility
this Committee has to address the ambiguity of our current laws
by clarifying the limits of their authorities.
The MMPA is intended to protect marine mammals by
preventing the take of the species, which the statute defines
as ``to harass, hunt, capture or kill, or attempt to harass,
hunt, capture, or kill.'' While the law allows for the take of
small numbers of marine mammals, the term ``small numbers'' is
undefined, and has created an unworkable process not just for
offshore energy but also in important fisheries management and
coastal restoration work.
Simply put, the ESA and MMPA are too vague, and have given
the U.S. Fish and Wildlife Service and the National Marine
Fisheries Service the ability to put forward sweeping
rulemakings with the force of law that stray from Congress'
original intent.
Last Congress this Committee got the ball rolling on
reforming the ESA. The biggest step forward was passing the ESA
Amendments Act of 2024. This bill would have reauthorized and
amended the ESA for the first time since 1988. The bill
contained provisions that provided clarity on certain
definitions, incentivized private landowners and States to
invest in species conservation, and provided much-needed
transparency in the decision-making process.
I am looking forward to the Committee examining both laws
as we work to make the Federal permitting process more
efficient and more effective.
I want to thank the witnesses again for your time today,
and all the Members for your interest in these important
issues.
And I yield back.
Ms. Hageman. Thank you, Mr. Chairman. 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, Madam Chair. And Madam Chair,
thanks also for mentioning Article I of the Constitution in
your opening remarks. We were beginning to think that our
Republican friends didn't know about Article I, or maybe had
forgotten about it, but that passing reference was the most
meaningful affirmation of Article I we have heard from the
Republican majority in this Congress, and maybe it is a start.
So in the month since Donald Trump was inaugurated, in
addition to all of the chaos and illegality that has been the
hallmark of this second Trump presidency, and shredding Article
I of the Constitution at every turn, the Administration has
waged an all-out assault on bedrock environmental protections
like the Endangered Species Act and the Marine Mammal
Protection Act and the scientists and the public servants
tasked with enforcing them.
This Committee should be doing its job defending the
separation of powers, Article I, and holding the Administration
accountable for ignoring clear congressional directives.
Instead, Natural Resource Republicans are trying to change the
subject while recycling these same tired policy ideas that they
have been pushing for decades.
Let's be clear. These laws are not just about wildlife.
They protect clean air, clean water, and the natural systems
that sustain us. When endangered species start blinking out, it
is not just an ecological loss, it is a warning sign of broader
environmental collapse. And when Republicans try and gut these
protections, they are not just putting wildlife at risk, they
are putting people at risk.
A few weeks ago, President Trump and his allies exploited
the devastation of the Los Angeles wildfires to attack the
Endangered Species Act and to falsely claim that they were
shipping water to Southern California to fight fires. This week
Committee Republicans are using the Supreme Court's Loper
Bright ruling as an excuse to dismantle protections under the
ESA and the MMPA.
Let's be clear about what Loper Bright actually did. It
overturned the long-standing principle that courts should defer
to agency interpretations of ambiguous statutes. It didn't
repeal the ESA or the MMPA, it didn't strip these laws of their
clear mandates, and it certainly didn't change the fact that
Congress, this body, already directed agencies to rely on the
best available science to protect endangered species and marine
mammals.
The question we should be asking is this: Why do
Republicans on this Committee continue to attack the very laws
designed to prevent extinction? And the answer is simple. These
laws spotlight inconvenient facts for certain powerful
industries: mining companies, the oil and gas industry,
corporate polluters who would rather squeeze out a little more
profit for themselves no matter the cost to everyday folks and
our planet.
Now, protecting wildlife and our environment means
sometimes you have to say no. More often you have to say do it
differently. But it also means holding industry accountable for
habitat destruction, pollution, and climate impacts. Good
environmental policy protects people. When polluters destroy
ecosystems, fisheries collapse, putting fishermen, seafood
industries, and coastal economies in jeopardy. When industry
pollution wipes out pollinators like bees and butterflies,
agriculture suffers, driving up food prices, threatening food
security for millions of people.
The numbers speak for themselves: one million species
worldwide at risk of extinction. In the U.S., 40 percent of
animals, 34 percent of plants on the brink, 25 percent of
marine mammal species threatened with extinction due to human
activities. The ESA works. Ninety-nine percent of listed
species survive. And it is not just successful in saving iconic
species like the bald eagle and the gray whale from vanishing
forever, it is a proven safeguard against ecological collapse.
The MMPA works, restoring populations of humpback whales,
sea otters, and manatees. These laws don't need fixing,
especially not the kind of fix that our Republican colleagues
are pushing, which is functionally repeal.
For those who put short-term profits over science, these
laws can be inconvenient, and that is why we constantly hear
these tired partisan refrains from across the aisle to repeal
and to weaken these laws. Last Congress I sometimes triggered
my colleagues across the aisle by calling them team extreme.
The first month of the Trump administration I have to say they
have made you folks look moderate. We have gone from team
extreme to Mad Max.
We are running out of time. There is a biodiversity crisis
right now. This is the time to support and implement these
important environmental laws, not to gut them.
I yield back.
Ms. Hageman. Thank you. I will now introduce our panel of
witnesses.
Mr. John Vecchione, Senior Litigation Counsel at New Civil
Liberties Alliance in Arlington, Virginia; Mr. Daniel Rohlf,
Professor of Law at the Lewis and Clark Law School in Portland,
Oregon; Mr. Paul Weiland, Partner at Nossaman LLP in Orange
County, California; and Mr. Parker Moore, Principal at
Beveridge and Diamond PC in Washington, D.C.
Let me remind the witnesses that under Committee Rules they
must limit their oral statements to 5 minutes, but their entire
statement will appear in the hearing record.
To begin your testimony, please press the button on the
microphone.
And we are using timing lights. When you begin, the light
will turn green. When you have 1 minute remaining, the light
will turn yellow. And at the end of 5 minutes, the light will
turn red, and I will ask you to please complete your statement.
I will also allow all witnesses to testify before the
Member questioning begins.
I now recognize Mr. Vecchione for 5 minutes.
STATEMENT OF JOHN VECCHIONE, SENIOR LITIGATION COUNSEL, NEW
CIVIL LIBERTIES ALLIANCE, ARLINGTON, VIRGINIA
Mr. Vecchione. Thank you. Chair Hageman, Ranking Member
Hoyle, and members of the Subcommittee, thank you so much for
the opportunity to provide my views on the implications of our
clients' victories in Loper Bright v. Raimondo and Relentless,
Inc. v. Department of Commerce, they were argued together, to
provide the Congress the opportunity to work its will, direct
the executive branch, and, among other things, improve the
implementation of the Marine Mammal Protection Act and the
Endangered Species Act.
I worked many years to overturn Chevron deference, as has
my organization, the New Civil Liberties Alliance. Now that
that task has been accomplished, the Congress can reassert
itself as the founders believed it would and should to set the
course for law and policies of the Federal Government in
protecting, exploiting, and managing the Nation's natural
resources.
Since the momentous decision on June 28, 2024, I have been
asked about the effect of the decision on administrative
agencies and on lawmaking of the end of Chevron deference. Some
commentators in the press have predicted the end of important
environmental and social regulations, merely because the
agencies are no longer able to create ambiguities or, worse,
silences because they could fill silence with power that they
hadn't been given, and then fill those ambiguities or silences
with whatever regulations they like. This is not so.
Since the creation of the Interstate Commerce Act of 1887
to address the regulatory challenges of the transcontinental
railroads, administrative regulatory power has been exercised
by Congress and affirmed by the courts, including the Supreme
Court. In 1946, the Congress passed, and President Harry Truman
signed, the Administrative Procedure Act, the APA. When Chevron
deference came along in 1984, Congress had been creating
administrative agencies that made regulations covering huge
swaths of American life, including securities, energy, the
environment, natural resources for over 100 years. And Chevron
was a case where Mr. Donziger, I know him, he is the lawyer who
brought it, he wanted to say that the law meant that the Reagan
administration could change in a way that was deemed better for
industry.
And then the court said, no, we are going to defer to this
agency, and if it is reasonable, you can go ahead. And at that
time, they thought that Chevron deference was going to hurt the
environment because of who the administration was. But Chief
Justice Roberts' decision for the majority in Loper Bright and
Relentless relied on the language of the APA to strike down
Chevron deference.
I and my organization believe the Constitution itself
forbids Article III courts from deferring to the interpretation
of the law by the Article II executive branch.
It should be understood the majority opinion relied on this
Congress' written will that ``courts must decide all relevant
questions of law.'' The case does not limit the ability of
Congress to enact statutes to regulate, nor does it prevent
constitutional delegation of authority to agencies. As Chief
Justice Roberts said for the majority, ``This is not to say
that Congress cannot or does not confer discretionary authority
on agencies. Congress may do so, subject to constitutional
limits, and it often has. The holding of the case is that
courts must exercise their independent judgment in deciding
whether an agency has acted within its statutory authority, as
the APA requires. Careful attention to the judgment of the
executive branch may help inform that inquiry. And when a
particular statute delegates authority to an agency consistent
with constitutional limits, courts must respect the delegation
while ensuring that the agency acts within it.'' But courts
need not, and under the APA may not, defer to the agency
interpretation because a statute is ambiguous.
And I am not going to say all my testimony, but I do want
to emphasize something for this group. The court's Loper Bright
decision that I think will be useful to this Committee is that
they did say, and they think, that 180 degree changes of the
law just because an administration changes but the law stays
the same is a problem. So there is going to be a resistance to
changing law when the statute doesn't change, and I really
think that is the nub of what is going on here, and I think
that is how we overturned Chevron deference. It was a scandal
to the judicial mind that the statute stays the same, and then
suddenly the regulation goes 180 degrees opposite.
So I will leave my written testimony. I have submitted it.
And the last thing I do want to say that, just for
questioning, is that I read everyone else's testimony, and some
of it dovetails. Mr. Rohlf's testimony says, hey, those Trump
administration regulations may not be OK now without Chevron,
and Mr. Weiland notes that the 1970s was the heyday of
environmental regulation. If those regulations were interpreted
back then, putting Chevron aside, the courts may see that as
consistent with the language then.
So change without legislative action is going to be
disfavored.
Ms. Hageman. I appreciate that, Mr. Vecchione. I think that
that is very good advice for the Members to take.
[The prepared statement of Mr. Vecchione follows:]
Prepared Statement of John J. Vecchione
Madam Chair Hageman, Ranking Member Hoyle, and members of the
Subcommittee, thank you so much for the opportunity to provide my views
on the implications of our clients' victories in Loper Bright Enters.,
Inc. v. Raimondo/Relentless, Inc. v. Dep't of Com., 144 S.Ct. 2244
(2024) (``Loper Bright/Relentless''), to provide the Congress the
opportunity to work its will, direct the executive branch and, among
other things, improve the implementation of the Marine Mammal
Protection Act and the Endangered Species Act. I worked many years to
overturn Chevron deference, as has my organization the New Civil
Liberties Alliance (``NCLA''). Now that that task has been
accomplished, the Congress can reassert itself, as the Founders
believed it would and should, to set the course for law and policies of
the Federal Government in protecting, exploiting and managing the
nation's natural resources.
Since the momentous decision on June 28, 2024, I've been asked
about the effect of the decision on administrative agencies and on law
making of the end of Chevron deference. Some commentators and the press
have predicted the end of important environmental and social
regulations merely because the agencies are no longer able to create
``ambiguities'' and then fill those ambiguities with whatever
regulations they like. This is not so. Since the creation of the
Interstate Commerce Act of 1887 to address the regulatory challenges of
the transcontinental railroads, administrative regulatory power has
been exercised by Congress and affirmed by courts, including the
Supreme Court. In 1946 the Congress passed, and President Harry Truman
signed, the Administrative Procedure Act (the ``APA''). When Chevron
deference came along in 1984, Congress had been creating administrative
agencies that made regulations covering huge swaths of American life,
including securities, energy, the environment and natural resources for
over 100 years. Chevron, U.S.A. Inc. v. Nat. Res. Def. Council, Inc.
467 U.S. 837 (1984). Chevron did not even mention the APA that Congress
had explicitly enacted to control agency regulation and its
adjudication by the Courts. Chief Justice Roberts' decision for the
majority in Loper Bright/Relentless relied on the language of the APA
to strike down Chevron deference. While I and my organization believe
that the Constitution itself forbids Article III courts from deferring
to an interpretation of the law by the Article II executive branch, it
should be understood that the majority opinion relied on this
Congress's written will that ``courts must `decide all relevant
questions of law.' '' 5 U.S.C. Sec. 706 (quoted in Loper Bright/
Relentless, 144 S.Ct. at 2260) (emphasis in original).
The case does not limit the ability of Congress to enact statutes
to regulate, nor does it prevent constitutional delegation of authority
to agencies. As Chief Justice Roberts said for the majority ``[This] is
not to say that Congress cannot or does not confer discretionary
authority on agencies. Congress may do so, subject to constitutional
limits, and it often has.'' Id. at 2268. The holding of the case is
that ``Courts must exercise their independent judgment in deciding
whether an agency has acted within its statutory authority, as the APA
requires. Careful attention to the judgment of the Executive Branch may
help inform that inquiry. And when a particular statute delegates
authority to an agency consistent with constitutional limits, courts
must respect the delegation, while ensuring that the agency acts within
it. But courts need not and under the APA may not defer to an agency
interpretation of the law simply because a statute is ambiguous.'' Id.
at 2273.
The subject of this hearing is ``Evaluating the Implementation of
the Marine Mammal Protection Act and the Endangered Species Act.'' I'm
familiar with those two acts but have not litigated them as I have the
Magnuson Stevens Act also within the Committee's jurisdiction. I'm not
an expert on their provisions. However, Loper Bright/Relentless does
not change the power of Congress to control agencies including the
agencies with responsibility to implement these two statutes. It means
that agencies will have to point to actual language and authority in a
statute to support regulations or regulatory actions. The basics are
probably well-known to this Committee. When Congress uses the words
``the Secretary shall'' do such and such it is taking away discretion.
When it says the ``Secretary may'' do such and such it is granting
discretion.
In the very first opinion of this Supreme Court term the Supreme
Court analyzed how Congress grants discretion to agencies and withholds
it. Bouarfa v. Mayorkas, 604 U.S. 6 (2024). In that case, Justice
Jackson for a unanimous court notes the things Congress can do to grant
wide discretion and also to cabin that discretion. The Court noted that
Congress had stated the Secretary of Homeland Security ``may, at any
time, for what he deems to be good and sufficient cause, revoke the
approval of any [visa] petition.'' Id. at 10 (quoting 8 U.S.C.
Sec. 1155). That case notes that the immigrant statutes is made up of
``mandatory statutory rules paired with discretionary exceptions.'' Id.
at 8. For the purposes of this Committee, courts are likely to
interpret similar statutory language similarly. Bouarfa contrasts the
broad discretion granted to the Secretary in revoking or not revoking
visas for prior ``sham marriage'' violations with that granted to the
Attorney General of the United States who can only exercise discretion
for clemency after making certain findings of fact (such as the length
of time the non-citizen has been in the country). Id. at 13-15.
The Endangered Species Act (``ESA'') and the Marine Mammal
Protection Act (``MMPA'') directs the Secretary of the Interior or
Secretary of Commerce, and through them the U.S. Fish and Wildlife
Services (``FWS'') and the National Marine Fisheries Service (``NMFS'')
to identify and take measures to protect various species of animals
under threat of extinction. It uses language like I've described to
instruct them on what they may do. For example, the Endangered Species
Act states for recovery plans states
The Secretary shall develop and implement plans . . . for the
conservation and survival of endangered species and threatened
species listed pursuant to this section, unless he finds that
such a plan will not promote the conservation of the species.
16 U.S.C. Sec. 1533 (f)(1).
In this case he shall, without discretion after he's listed a
species, create a recovery plan unless he finds it won't help conserve
the species. His actions would then be tested under the APA for making
decisions or findings ``arbitrarily or capriciously'' or otherwise
violating the law. It appears that much of the litigation over these
statutes centers on whether the agencies are assessing risk to the
various species accurately. See e.g. Friends of the Animals v Williams,
628 F.Supp.3d 71 (D.D.C. 2022) (remand to agency determine whether
species of red macaw was endangered or threatened); Friends of the
Animals v. Ross, 396 F.Supp.3d 1 (D.D.C. 2019) (remand to agency for
further studies on type of conch's range).
Recently the D.C. Circuit explained how this body amended the ESA
in 1979 to ease the tremendous economic damage it had caused in
development of the TVA in the famous ``snail darter'' case. See Me.
Lobstermen's Ass'n v. NMFS, 70 F.4th 582, 596 (D.C. Cir. 2023)
(describing original language of ESA and Congress's changes to correct
after Supreme Court's decision in TVA v. Hill, 437 U.S. 153 (1978)).
They explain how Congress changed the original statutes ``no
exceptions'' command to provide resort to better science and a concern
for expense.
Under Loper Bright/Relentless, the secretaries of the agencies
under these statutes will not be assumed to have legislative power
whenever they wish to use ambiguous language in the statutes to change
a regulation. Chevron deference meant that silence or ambiguity allowed
the administrator to do anything the courts would deem ``reasonable''
within his purview. Now, he must state where Congress provided that
power or discretion. In many cases in these statutes, it will have done
so.
There are ways for Congress to prevent such discretion from being
abused. First is requiring the Secretary to find certain facts as in
Bourfa before exercising the discretion. In my example, I described one
case where the ESA already does so. If Congress believes the
secretaries are not taking a factor into account that should be taken
into account, it can require them to do so. If it believes they are
using a criterion that is not valid and does not lead to protecting
species it can require him to use it.
There is one last consideration that concerns the Court's Loper
Bright/Relentless decision that I think will be useful to this
Committee. In that case, and in the effort to overturn Chevron
deference, one result of that deference that struck judges and
commentators as unfair was that the exact same law could mean
regulations changed 180 degrees with a change in the administration. I
believe the Supreme Court has signaled that when a new law or amendment
is passed, the way the first administration deals with that law and
issues regulations and interpretations of the new law is likely to set
the tone and parameters of the regulatory scheme going forward. The
Court went out of its way to note the ``respect'' the executive
branch's interpretation of a statute ``was issued roughly
contemporaneously with enactment of the statute and remained consistent
over time.'' Loper Bright/Relentless, 144 S.Ct. at 2258. The Courts are
suspicious of vast changes in the obligations the same statute imposes
when there has been no change in the statute by Congress. Vague
language will no longer be allowed to empower the agencies. At oral
argument in Loper Bright, Paul Clement posited that legislative
compromise was being stymied partly because each side had incentive to
assume when its party had the Presidency, any vagueness in the law
would redound to its benefit. Whether he was right or wrong about that
if there was such an incentive, it's gone now. Clarity on what the
Congress wants will now be rewarded, and vagueness is unlikely to allow
the Executive to work its will unchallenged by the Courts.
Congress no longer has any incentive to allow its statutory intent
to be unclear in the hopes a friendly administration will be empowered
to do what it did not clearly command and it also need not fear an
unfriendly one can do anything it wants in that space. I thank you for
this opportunity to lay out my thoughts on the new regulatory
landscape.
______
Questions Submitted for the Record to Mr. John Vecchione, Senior
Litigation Counsel, New Civil Liberties Alliance
Mr. Vecchione did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.
Questions Submitted by Representative Wittman
Question 1. With regard to the Loper Bright impact on MMPA, clarity
is now required to ensure agencies don't follow Congress' intent but
follow Congress' laws. We need to be able to preserve marine mammals.
But also keep a variety of marine economies prosperous. Congress must
take a more thorough approach to creating legislation that does both of
those things. The onus is off Congress in that we can legislate with
the same intended effects regardless of the tenant in the White House.
In your opinion, does MMPA as is hold the specificity required by Loper
Bright to ensure future Democrat administrations don't abuse MMPA
rulemaking to hamper U.S. maritime industries? How does the MMPA with
the overturning of Chevron create a need for regulation to prevent
repeats of Biden-era MMPA regulations?
______
Ms. Hageman. You will see that people are going to be
coming in and out of the hearing today, and that is because
they have votes in other committee hearings. So it is not that
they don't have great interest in this subject. They do. And in
fact, we are going to be addressing this in greater detail
later today. But they do have to go to other Committees and
vote. So they will be back for questioning. Thank you for your
patience.
The Chair now recognizes Mr. Rohlf for his 5 minutes of
testimony.
STATEMENT OF DANIEL ROHLF, PROFESSOR OF LAW, LEWIS AND CLARK
LAW SCHOOL, PORTLAND, OREGON
Mr. Rohlf. Thank you for the opportunity to address this
Subcommittee.
In the wake of the Supreme Court's decision in Loper
Bright, this morning we have heard about supposed ambiguities
in the Endangered Species Act. But the Supreme Court has
examined this law and found it to be extremely clear. Indeed,
the court emphasized that ``the plain intent of Congress in
enacting this statute was to halt and reverse the trend toward
species extinction, whatever the cost.'' Most Americans agreed
with this emphatic goal 50 years ago, and most Americans agree
today.
The Endangered Species Act has been very effective, as we
have already heard, and 90 percent of the listed species are
making progress toward recovery at the rate envisioned in their
recovery plans. But it takes time, resources, and cooperation
between many parties to recover species facing extinction and
restore their habitat.
In just the past few weeks, however, we have seen actions
that threaten to derail both species recovery efforts, as well
as slow down or even halt the decisions of many Federal
agencies including permitting and other decision-making
processes that affect the actions of landowners and businesses
across the country. Haphazard mass layoffs and firings of
Federal employees, including those who manage the habitat of
many listed species, will leave many recovery actions undone
and habitat unprotected. Though sold as increasing government
efficiency, these cuts are incredibly inefficient. They save
little money, and will inevitably slow down the biological
analyses and permitting that must take place before actions
that affect listed species can move forward, including many
energy-related priorities of the current Administration.
And there is no ambiguity in the Endangered Species Act or
in court opinions that apply its clear terms as to what happens
if such analyses and permitting is not completed. Actions
simply cannot go forward. For example, the National Marine
Fisheries Service has a court-ordered deadline to produce a new
Section 7 Endangered Species Act biological opinion examining
oil and gas leasing in the Gulf of Mexico by this coming May.
Layoffs, firings, and fork-in-the-road offers are undoubtedly
pushing completion of this work and with it, the future of Gulf
oil and gas activities in doubt.
This Gulf case also illustrates another way the Endangered
Species Act is unambiguous. Unless the agencies base their
decisions and conclusions on the best science, court will
overturn them. This is what the Maryland District Court did
when it found that NMFS ignored its own experts and gave oil
and gas activities a green light based on rosy assumptions
about the future risk of oil spills.
Still, there are very likely ways that allow leasing and
exploration to go forward with modest modifications to protect
species such as Rice's whales, which lost 20 percent of its
population in the last big oil spill. However, it takes
dedicated Federal experts to chart such a path, and ongoing
measures to fire or harass Federal employees mean that these
experts may be gone.
Finally, the Supreme Court's Loper Bright decision may well
play an important role in the Endangered Species Act in the
near future. The President's Day one declaration of an energy
emergency instructs agencies to rely on the ESA's emergency
Section 7 consultation regulations for energy projects
permitting. It also calls for ongoing meetings of the
Endangered Species Committee, a body which has not convened for
decades, to hand out exemptions from the ESA's protections.
However, in Loper Bright, as my colleague explained, the
Supreme Court instructed Federal courts to provide their own
best reading of Federal statutes, rather than to defer to how
Federal agencies interpret the laws they implement. I am quite
confident that courts applying this standard would have little
difficulty in overturning agency actions consistent with the
obviously flawed interpretation of the ESA set forth in the
President's declaration.
In the end, there may not be unanimity in this room about
whether to continue to support the goals of the Endangered
Species Act. However, no matter if one's goals are to recover
listed species or to expedite Federal permitting, it is also
unambiguous that the actions of the executive branch and Elon
Musk over the past few weeks will make both more difficult.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Rohlf follows:]
Prepared Statement of Professor Daniel J. Rohlf
Thank you, Chair Hageman, Ranking Member Hoyle, and members of the
Subcommittee, for your invitation to speak to you today.
My name is Daniel Rohlf. I am a Professor of Law at Lewis and Clark
Law School in Portland, Oregon, where I teach in our nationally
regarded Environmental, Natural Resources, and Energy Law Program.
Among other classes, I have taught Wildlife Law for 35 years, and with
a colleague on our faculty co-founded Lewis and Clark's domestic
environmental law clinic, Earthrise Law Center, nearly 30 years ago.
For decades I have published and lectured widely on biodiversity law in
general and the Endangered Species Act in particular.
The value of both biodiversity and the ESA
The United States remains a world leader in establishing and
implementing laws to conserve biodiversity and thereby safeguard its
ecological, economic, and cultural benefits to the Nation and its
people. Over a half century ago, the Marine Mammal Protection Act
(MMPA) was the first federal law--and one of the first in the world--to
take an ecosystem approach to managing and protecting wildlife
resources. A year later, the Endangered Species Act (ESA) underscored
the country's commitment to avoiding human-caused extinctions of other
species, and to protecting the ecosystems upon which those species
depend. The idea behind these laws, however, is not to just benefit
species that in some cases may sound obscure or far-away--it is aimed
at preserving and recovering the intricate web of life that ultimately
sustains us all.
Indeed, the economic and social benefits of protecting endangered
species and marine mammals are as significant as conservation programs'
ecological contributions. By protecting species and their habitats, we
are ensuring that future generations will inherit a functional and
vibrant environment--one that contributes to public health, well-being,
and cultural richness of our society.
Species protection under the ESA has profound cultural and economic
significance for many communities. In my home region, for example, the
federal government signed treaties with many indigenous cultures to
safeguard their fishery resources, including salmon and steelhead. Non-
tribal commercial and sport fisheries have also sustained primarily
rural communities along the West Coast and its watersheds for
generations. While some critics--and Executive Orders--single out
lessor known species such as delta smelt, many native fish species,
including salmon and steelhead, are now listed as threatened and
endangered as a result of human impacts on water quality and quality,
as well as dams blocking fish from their formerly accessible habitat
and similar declines in ecosystem function. Fortunately, the ESA is a
key driver of efforts to improve native fish runs and the aquatic
ecosystems that sustain them.
Clean and abundant water and functioning ecosystem services are,
not surprisingly, just as important to human communities as natural
ones. Therefore, the notion that the ESA's restoration efforts are the
product of ``radical environmentalism'' putting fish over people is
utterly false. The steps underway pursuant to the ESA to restore
functional aquatic ecosystems in places such as California's
Sacramento/San Juaquin River system and the Northwest's Columbia River
Basin are benefiting local communities, economies, and indigenous
cultures along with the endangered fish and other species that depend
on these waterways. In contrast, performative gestures such as the
unprecedented water releases from two federal reservoirs in California
a few weeks ago simply imperiled downstream communities and wasted
stored water that farmers could have used this spring.
In pure dollars and cents, functional ecosystems and their
biodiversity are a foundation of our economy and create economic value
in myriad ways. Pollinator species make agriculture possible.
Charismatic species support ecotourism industries. Scavenger species
provide waste removal services and prevent the spread of disease.
Research by the World Economic Forum and PwC found that more than half
of the world's total GDP is moderately or highly dependent on natural
ecosystems and the services that they provide.\1\ Individual species
also provide examples of astonishingly valuable breakthroughs: The
venom of Gila monsters--lizards in the desert Southwest whose
populations are declining--inspired the diabetes management and weight-
loss drug Ozempic; Caribbean sea squirts were key developing the
chemotherapy drug trabectedin.\2\
---------------------------------------------------------------------------
\1\ WORLD ECONOMIC FORUM & PWC, NATURE RISK RISING 8 (2020),
https://www3.weforum.org/docs/WEF_New_Nature_Economy_Report_2020.pdf.
\2\ Craig Russell, Wegovy Was Inspired By Gila Monster Venom--Here
Are Some Other Drugs With Surprising Origin Stories, CONVERSATION
(Sept. 5, 2023), https://theconversation.com/wegovy-was-inspired-by-
gila-monster-venom-here-are-some-other-drugs-with-surprising-origins-
208630.
---------------------------------------------------------------------------
While I can provide general summaries, I encourage members of the
Subcommittee to seek out experts' opinions on the both the importance
of biodiversity and the current state of this invaluable resource.
Fortunately, a massive effort by scores of scientists to catalog the
state of nature in the United States, including its contributions to
human health and well-being--is nearing completion. Maddeningly,
however, the White House recently intervened to prevent the National
Nature Assessment, in the making for years by renowned experts who
mostly donated their time, from being finalized and published. If this
Subcommittee truly seeks to exercise oversight over the nation's water,
wildlife, and fisheries, it should pressure the Executive Branch not to
censor invaluable information on the state of these resources and the
many benefits they provide to American citizens.
With threats to biodiversity increasing, particularly from climate
change, we need a strong and effective legal framework to protect and
restore species and their habitat. The ESA provides much of this legal
safety net, and it works. While some critics complain about the pace of
species delisted as recovered, this argument is political rather than
biological and as such fails to consider the complexity of species
recovery and the time required to actually accomplish it. Many listed
species' recovery timelines frequently span 30-50 years or more.
Approved recovery plans, on average, anticipate that full recovery of
listed species will take 46 years, while the average time that species
have been listed is 32 years.\3\ In fact, about 90% of protected
species are recovering at the pace projected in their recovery plans, a
remarkably high success rate that few laws can boast.\4\ Overall, the
ESA has prevented extinction of nearly all of the species on its
protected lists, even those belatedly added to the roll of listed
species after years of unnecessary delays.5,6
---------------------------------------------------------------------------
\3\ CTR. FOR BIOLOGICAL DIVERSITY, THE ENDANGERED SPECIES ACT: 50
YEARS OF EXTRAORDINARY SUCCESS (2023), https://
www.biologicaldiversity.org/publications/papers/The-Endangered-
Species%20Act-50-Years-of-Extraordinary-Success.pdf.
\4\ Id. at 6.
\5\ KIERAN SUCKLING ET AL., CTR. FOR BIOLOGICAL DIVERSITY, A WILD
SUCCESS: A SYSTEMATIC REVIEW OF THE ENDANGERED SPECIES ACT'S
EFFECTIVENESS (2016), https://biologicaldiversity.org/campaigns/esa/
pdfs/WildSuccess.pdf.
\6\ CTR. FOR BIOLOGICAL DIVERSITY, THE ENDANGERED SPECIES ACT: 50
YEARS OF EXTRAORDINARY SUCCESS (2023), https://
www.biologicaldiversity.org/publications/papers/The-Endangered-
Species%20Act-50-Years-of-Extraordinary-Success.pdf.
---------------------------------------------------------------------------
Budgets, agency personnel, and species recovery
While the ESA provides a strong legal framework for protecting and
restoring species and the ecosystems these creatures--and humans--
depend on, accomplishing these goals requires both adequate funding and
dedicated people to carry out the day-to-day work of recovery. Yet ESA
implementation suffers from chronic underfunding, delaying listing and
recovery efforts. A recent study noted that species are often not
protected until their populations have already dwindled to dangerously
low levels, making recovery more time-consuming and difficult;
nonetheless, the study also found that recovery funding per species
dropped nearly 50% between 1985 and 2020.\7\ The total annual budget
for recovery of over 1,500 species is only $82 million, while a
detailed analysis of federal recovery plans reveals that fully
implementing the steps outlined in these plans would cost approximately
$2.3 billion a year. While this figure sounds like a substantial amount
of money, it is roughly the funding comparable to federal subsidies
provided to oil and gas companies on public lands in 2015, or slightly
less than the sum Elon Musk receives in a month.
---------------------------------------------------------------------------
\7\ Center for Biological Diversity, Shortchanged: The Underfunding
of the Endangered Species Act 3 (2016), available at https://
www.biologicaldiversity.org/programs/biodiversity/pdfs/
Shortchanged.pdf.
---------------------------------------------------------------------------
These funding shortfalls, not problems with the ESA itself, are the
culprit behind delays in species recovery. For example, the small
whorled pogonia, a rare orchid, has made substantial progress toward
recovery but with funding shortages has become a victim of its own
conservation success. Although the species is doing well, it has become
a low priority for funding compared to more imperiled species, leaving
critical final recovery steps--such as land acquisitions and management
commitments--unfunded.\8\ This both hinders final recovery efforts for
the species and forces federal agencies and others to continue to have
to follow the ESA's procedures and protections for the species that
would no longer be necessary if the plants were delisted as recovered
on a timely basis. Thus, proper investment in recovery not only hastens
species recovery, it streamlines processes and limitations that some
label as the ``red tape'' associated with ESA compliance.
---------------------------------------------------------------------------
\8\ Id.
---------------------------------------------------------------------------
While inadequate funding has long stymied efforts to conserve
species under the ESA, this problem is becoming exponentially more
significant in light of the ongoing staffing cuts within FWS and NMFS,
the agencies responsible for implementing the ESA. These cuts present a
significant threat to the progress achieved under the ESA, and if left
unaddressed, could reverse the recovery of numerous species and
undermine efforts to prevent more species from being listed as
endangered or threatened. If the Committee wishes to conserve species
and prevent extinctions, rather than weakening a conservation statute
passed with bipartisan support, its members should take action to
ensure that the Services maintain the staffing and expertise necessary
for implementing the statute.
Earlier this month, the Trump administration purged hundreds of
employees from the FWS. These layoffs come on top of thousands of
resignations by Interior Department employees--many of whom were FWS
employees--compelled by the president's and Elon Musk's ``Fork in the
Road'' choice to resign immediately from what many consider their dream
jobs with perhaps a few months' pay or face termination. Meanwhile,
NOAA is facing its own severe layoffs, budget cuts, and even perhaps
complete elimination. These cuts threaten the agency's ability to
perform essential functions such as listing and delisting marine
species, issuing biological opinions, approving habitat conservation
plans, and managing species on a proactive basis in order to prevent
them from becoming threatened or endangered. A former head of FWS noted
that among the FWS employees recently fired by the Trump administration
were biologists working to conserve native bird species in Hawaii that
are ``about to blink out'' of existence.\9\
---------------------------------------------------------------------------
\9\ Benji Jones, Trump's Job Cuts at This Overlooked Agency Put
Every American at Risk, VOX (Feb. 21, 2025), https://www.vox.com/down-
to-earth/400608/trump-doge-jobs-layoff-fish-wildlife-service.
---------------------------------------------------------------------------
Even further, the White House has made no secret of its belief that
it can impound funds already allocated and appropriated by Congress.
Conservation efforts for these and many other species may be doomed if
Congress does not defend the funding that it--and, through it, the
people of the United States--have allocated toward actions to recover
threatened and endangered species. In addition to doing lasting and
perhaps irrevocable harm to vulnerable species, dismantling the
Services through decimating their staffs and impounding their budgets
will seriously impair their ability to do the work they must do in
order to approve federal agency actions, including actions that are
consistent with the current administration's ``energy dominance''
agenda. Put simply, federal oil and gas leasing programs must comply
with the law, which requires agencies conducting energy-related
activities to consult with the Services about potential impacts to
listed species and their critical habitat. Withdrawing resources and
eliminating personnel from the Services will therefore slow other
federal actions such as energy development and permitting for other
economic development activities. Underfunding and understaffing also
have far-reaching legal consequences, resulting in further delays in
species recovery efforts, costly legal settlements when courts halt
agency actions for failing to comply with the law, and unsustainable
burdens on remaining agency personnel.
The ongoing cuts to FWS and NMFS staff and the threats to the
budgets to these agencies notwithstanding funding decisions made by
Congress present an unprecedented threat--not only to the future of
species recovery and agencies' ability to carry out steps essential to
everyday permit processes, but to our democracy itself. Congress,
including the members of this Subcommittee, must fulfill its
responsibility to uphold the laws of the United States. Doing so is
fundamental to maintaining the separation of powers in our
constitutional system and ensuring that lawmakers maintain the power of
the purse on behalf of the American people. I urge members of this
Subcommittee to prioritize the restoration of adequate staffing levels
for these agencies, and I call upon members to fulfill their oaths to
defend the Constitution by ensuring that the monies appropriated by
Congress are allocated and spent by the Executive Branch for their
intended purposes.
Supreme Court's Decision in Loper Bright
Last year, the U.S. Supreme Court issued its decision in Loper
Bright Enterprises v. Raimondo,\10\ which changed administrative law by
announcing a new standard for federal courts to review federal
agencies' interpretations of statutes they implement. Overruling a
long-standing decision by the Court, the majority concluded that courts
should no longer apply what had become known as Chevron deference to
agencies. This standard held that federal judges should defer to
``reasonable'' agency interpretation of federal laws that were not
clear and unambiguous on their face.
---------------------------------------------------------------------------
\10\ Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).
---------------------------------------------------------------------------
Disputes in federal court that arise under statutes such as the
Endangered Species Act raise two kinds of questions for judges to
resolve. The first type involves application of the ESA's requirements
in specific factual situations. In such cases, a court defers to the
decision of a federal agency, including FWS and NMFS, unless the judge
determines that the agency had acted arbitrarily or capriciously by
failing to articulate a rational connection between facts in the
agency's record and conclusions the agency drew. Even applying this
demanding standard, courts sometimes find that agencies have not
properly applied the law in specific instances. Such results were
particularly common for ESA decisions made during the first Trump
Administration. For example, federal courts overturned biological
opinions examining operation of the federal dams in California's
Central Valley Project as well as oil and gas leasing and exploration
in the Gulf of Mexico. Such judicial scrutiny is essential to ensuring
that science rather than political expediency governs how agencies
balance the ESA's conservation requirements with other goals--as the
law requires.
Other court cases involve how to properly interpret the law itself.
In such instances, the Loper Bright opinion puts more responsibility on
federal judges to discern the meaning of federal laws rather than
simply deferring to federal agencies' view of the law's meaning as long
as an agency set forth a ``rational'' reading of a statute. Though
courts must still consider agencies' ``body of experience and informed
judgment,'' federal judges must now employ standard legal tools of
statutory interpretation to arrive at their own decisions on the best
reading of a law's meaning.
While Congress is of course able to create, amend, or repeal
federal laws as it sees fit for the benefit of the American people, the
Loper Bright decision creates no particular need to amend the ESA. The
statute has existed in essentially its present form since 1988, and
courts have long-since resolved most key questions regarding its
meaning--the type of precedents that the Supreme Court in Loper Bright
noted should remain in place even if they had relied on Chevron
deference. Going forward, courts will resolve any remaining issues that
arise using traditional legal tools of statutory interpretation,
including looking at the statute itself as well as the intent of
Congress when it enacted the relevant legal provisions.
One of the first noticeable effects of Loper Bright in the context
of the ESA is likely to be--and should be--judicial skepticism over
ways that the Trump Administration has in the past, and is currently,
interpreting the statute. For example, regulatory changes made during
the first Trump Administration removed restrictions on FWS and NMFS
from discussing their estimates of economic costs caused by listing a
species as threatened or endangered in the course of making decisions
on whether to add species to these lists. While in the past courts
would have had to defer to this view of the statute if they found it to
be at least reasonable, now judges must reach their own best reading of
the law. In such a case, a court will almost undoubtedly throw out a
similar regulation if the new Administration seeks to reinstate it
(after it was repealed two years ago). Since the ESA expressly provides
that the Services must make listing decisions ``solely'' on the basis
of the best science available,\11\ Loper Bright will almost certainly
mean that federal courts will reject such a back-door effort to
introduce non-biological factors into listing decisions. Similarly,
recent Executive orders that call for extensive use of the ESA's
section 7 emergency consultation procedures and formation of a standing
Endangered Species Committee to hand out frequent exemptions from
section 7(a)(2)'s requirements will likely not stand in light of Loper
Bright's raised bar for judicial scrutiny of agencies' interpretation
of the law.
---------------------------------------------------------------------------
\11\ 16 U.S.C. Sec. 1533(b)(1)(A).
---------------------------------------------------------------------------
Marine Mammal Protection Act
The ESA, if properly funded, can be a powerful tool for conserving
imperiled species--but it is not the only federal statute that plays a
vital role in protecting our nation's wildlife. The Marine Mammal
Protection Act (MMPA) prohibits the ``take'' of marine mammals and
gives NMFS the task of authorizing exceptions to this prohibition only
after an agency or other entity meets specific mitigation and
minimization requirements. The MMPA provides an additional layer of
protection for marine mammal species also protected under the ESA, and
extends protections to marine mammals that are not listed under the
ESA.
Disasters caused by human activities illustrate the perils that
marine species face. In 1989, the Exxon Valdez oil spill caused the
deaths of an estimated 300 harbor seals and twenty-two killer whales in
Prince William Sound.\12\ Just over two decades later, the Deepwater
Horizon oil spill devastated marine communities in the Gulf of Mexico,
killing about one in five Rice's whales and setting off an enormous
cetacean die-off.\13\ The MMPA is a crucial safeguard against future
mass mortality events, and its protections should continue to provide
additional protections for whales, dolphins, and other marine mammals.
NMFS has taken steps to streamline the process of administering the
MMPA. For example, NMFS has created NEPA categorical exclusions for
certain, low-impact incidental take authorizations under the MMPA. In
doing so, NMFS has helped to ensure that the MMPA is administered
efficiently, benefiting both marine species and development interests.
---------------------------------------------------------------------------
\12\ Exxon Valdez, NOAA (Aug. 17, 2020) https://darrp.noaa.gov/oil-
spills/exxon-valdez.
\13\ Rice's Whale: In the Spotlight, NOAA FISHERIES (Nov. 26, 2024)
https://www.fisheries.noaa.gov/species/rices-whale/spotlight.
---------------------------------------------------------------------------
Conclusion
The Endangered Species Act and Marine Mammal Protection Act provide
key legal protections for the benefit of not only imperiled species and
marine creatures, but for all Americans. Congress should not only
protect staffing levels and agency budgets for implementing these laws
to both protect species and ensure orderly permitting and decision-
making, it should increase funding allocated for species recovery. Such
actions would preserve Congress's constitutional authority in our
democracy and protect species and ecosystems for our children and
grandchildren.
______
Questions Submitted for the Record to Daniel Rohlf, Professor of Law
and Director, Earthrise Law Center
Questions Submitted by Representative Stansbury
Question 1. Mr. Rohlf, I was struck reading a piece you wrote on
the 40th anniversary of the ESA that you reference not only the legal,
but moral imperative of protecting species--as our country faces an
unprecedented time, why do you think we need to protect the Endangered
Species Act?
Answer. This responds to a written question from Rep. Stansbury
based on my testimony before the Subcommittee on February 26, 2025.
More than a half century after a Republican president signed the
Endangered Species Act into law, Members of Congress should not only
affirm the nation's commitment to recovering threatened and endangered
species and the ecosystems upon which those species depend, lawmakers
should strengthen species and ecosystem protection efforts by
increasing funding for conservation measures and the agencies that
carry them out.
Our country does indeed face an unprecedented time in many ways.
The current occupant of the White House vows to make the country great,
but at the same time issues orders that call for putting people
``over'' other species and denigrating those who care about protecting
creatures from extinction as ``radical environmentalists.'' Yet all
around us there are warning signs that both people and the natural
world are increasingly in harm's way. Unprecedented floods, fires, and
storms fueled by climate change have ended or uprooted the lived many
Americans and caused billions upon billions of dollars in damage. At
the same time, the country faces a related biodiversity crisis--a 2023
NatureServe report found that a third of our plants, 40% of animals in
the United States, and over 40% of our ecosystems are facing range-wide
collapse. This trend will not lead to greatness. On the contrary, it
will continue to impose enormous costs on our society--both in terms of
lives and dollars, as well as in aesthetic and moral terms. On the
other hand, restoring species and ecosystem function creates natural
capital and increases economic well-being.
Restoration of the Klamath River ecosystem provides an excellent
example of the promise--and unfinished business--of the Endangered
Species Act. Led by tribes in the region who have stewarded and relied
on the river's resources for thousands of years--along with ESA
protections for both Klamath salmon and native fish that live in
headwaters lakes--removal of four dams that had outlasted their useful
lives was completed last summer. Thousands of salmon are already
colonizing the renewed habitat, exceeding scientists' greatest
expectations and heralding the beginning of a return of abundant tribal
and commercial fisheries that have been only a memory. Early rafting
expeditions have both cataloged the return of eagles, herons, and other
wildlife and signaled the start of renewed recreational opportunities
on the river. In December, work began in the upper Klamath Basin to
restore wetlands that not only provided habitat for untold numbers of
juvenile salmon and migratory birds, but helped store water in
increasingly hot summers and replenish groundwater that increasingly
serves as the only water available to the area's decreasing number of
farmers. However, the Trump Administration recently cut off funding
allocated under the bipartisan infrastructure bill passed by Congress
in 2021 that was enabling the next crucial steps in restoring a
functional Klamath ecosystem and improving conditions for both the
basin's wildlife and the people who live there.
As in the Klamath, across the country the Endangered Species Act is
a catalyst for actions that benefit species facing extinction as well
as the human communities that ultimately rely on a healthy environment.
However, senseless attacks on the ESA, funding to implement recovery
and restoration measures, and the agencies responsible for the law's
implementation by the Trump Administration and Republicans in Congress
threaten to derail this progress.
True leaders recognize the wisdom of pioneering ecologist Aldo
Leopold, who called for people to recognize that humans are simply
members of the Earth's biotic community--our fate is tied to the fate
of all life on the planet. Thus, protecting and strengthening the
Endangered Species Act ultimately benefits us.
______
Ms. Hageman. Thank you. The Chair now recognizes Mr.
Weiland for 5 minutes.
STATEMENT OF PAUL WEILAND, PARTNER, NOSSAMAN LLP, IRVINE,
CALIFORNIA
Mr. Weiland. Good morning, Subcommittee Chair Hageman and
members of the Committee. My name is Paul Weiland, and I am a
partner in the Irvine, California office of Nossaman, LLP.
Prior to my time at Nossaman I was in the law and policy
section in the Environment and Natural Resources Division of
the U.S. Department of Justice. My testimony here is based on
my experience working with Federal wildlife agencies across the
Nation, including experience with the Marine Mammal Protection
Act and Endangered Species Act. My testimony represents my
views as an individual, and does not necessarily represent the
views of my firm or my clients.
The MMPA and ESA were enacted during the 1970s, a decade
that represents the high water mark for passage of
environmental laws by Congress. Both laws reflect a high degree
of optimism in Congress regarding the Nation's ability to
accomplish ambitious conservation goals, while achieving other
societal objectives. In addition, both laws lack specificity
and have been subjected to limited congressional
reauthorization. Consequently, the other branches of
government, as my colleagues have already mentioned, have
played an outsized role in the evolution of these laws.
In implementing both the MMPA and ESA, the National Marine
Fisheries Service and U.S. Fish and Wildlife Service have
frequently drifted from value neutral assessment of information
regarding the status of species and the effects of human
activities on them to the application of the precautionary
principle. The essence of this principle, as applied in the
context of the two Acts, is the notion that one should draw all
inferences in a manner that tends to underestimate the
distribution and abundance of species, and overestimate the
effects of myriad human actions on those species.
In shorthand, the agencies have often referred to this
precautionary approach as giving the benefit of the doubt to
the species.
The precautionary principle is ingrained in agency culture
and reflected in a wide range of agency rules, guidance, and
other activities. In Maine Lobstermen Association v. National
Marine Fisheries Service decided in 2023 by the United States
Court of Appeals for the D.C. Circuit, the court held that it
is a blunt tool, and that the precautionary approach can
distort decision-making, and therefore that it is unlawful
under the Endangered Species Act.
In my written testimony, I described three examples of
instances where agency reliance on the precautionary principle
led to unlawful action. One of those examples is the National
Marine Fisheries Service Vessel Speed Rule. NMFS adopted the
initial vessel speed rule for right whales in 2008, imposing a
speed limit of 10 knots on most vessels equal to or greater
than 65 feet in length along much of the eastern seaboard to
reduce the likelihood of collisions with right whales. In 2022,
the agency proposed to expand the rule to vessels between 35
and 65 feet in length, and to a more expansive geographic area
that encompassed much of the eastern seaboard. In January 2025,
the agency withdrew its proposed rule, but the 2008 rule
remains in effect.
In the 2022 proposed rule, NMFS reported that between 2008
and 2022 there were 5 right whale vessel strikes involving
vessels between 35 and 65 feet in length. During that same
period of time there were more than 5.1 million offshore
fishing trips along the eastern seaboard by vessels between 35
and 65 feet in length. These data demonstrate that the
probability that a vessel between 35 and 65 feet in length
operating on the eastern seaboard would strike a right whale is
less than 1 in a million. The proposed rule exemplifies one
circumstance in which the precautionary principle can result in
an absurd outcome. That is, when the regulation of a vast
amount of human activity that causes no harm occurs for the
purpose of curbing a minuscule amount of human activity that
causes harm.
Even more problematic is the lack of legitimate basis in
the MMPA or ESA for either rule. This is a topic that Mr. Moore
deals with in detail in his written testimony.
NMFS and the Fish and Wildlife Service do face substantial
challenges as they implement the MMPA and ESA, but that is not
grounds for giving the agencies a pass when their actions are
premised on an approach to decision-making that puts a thumb on
the scale, rather than relying on the best available scientific
information.
Thank you for the opportunity to share my views. I am happy
to answer any questions.
[The prepared statement of Mr. Weiland follows:]
Prepared Statement of Paul Weiland, Nossaman LLP
My name is Paul Weiland, and I am a partner in the Irvine,
California office of the law firm Nossaman LLP. I have been an
associate and then partner at Nossaman for over 20 years. Prior to my
time at Nossaman, I was an attorney in the Law and Policy Section in
the Environment and Natural Resources Division of the U.S. Department
of Justice.
My testimony is based on my experience working on federal wildlife
issues across the nation, including experience and familiarity with the
Marine Mammal Protection Act (MMPA) and Endangered Species Act (ESA).
My testimony represents my views as an individual and does not
necessarily represent the views of my firm, Nossaman, or my clients.
The MMPA and ESA were enacted during the 1970s, a decade that
represents the high-water mark for passage of environmental laws by
Congress. Both laws reflect a high degree of optimism regarding the
nation's ability to accomplish ambitious conservation goals while
achieving other societal objectives. In addition, both laws lack
specificity and have been subject to limited Congressional
reauthorization; consequently, the other branches of government have
played outsized roles in their respective trajectories.
In implementing both the MMPA and ESA, the National Marine
Fisheries Service (NMFS) and U.S. Fish and Wildlife Service (USFWS)
have frequently drifted from value-neutral assessment of scientific
information regarding the status of species and the effects of human
activities on them to application of the precautionary principle, when
confronted with substantive uncertainties. Like many broad policy
principles, the precautionary principle means different things to
different people, but two common formulations are: (1) lack scientific
certainty should not be a basis for failure to regulate an action that
poses a risk of harm to the environment and (2) if there is a risk of
harm to the environment due to an action, the action should not
proceed. The essence of that principle as applied in the context of the
MMPA and ESA is the notion that one should draw all inferences in a
manner that tends to underestimate the distribution and abundance of
protected species, overestimate the effects of myriad actions on those
species, and, even, over- or under-estimate the effects of measures
intended to yield benefits for the species. In shorthand, NMFS and
USFWS have often referred to this precautionary approach as giving the
benefit of the doubt to the species.
The precautionary principle is engrained in agency culture and
reflected in a wide range of agency rules, guidance, and other
activities. In Maine Lobstermen's Association v. National Marine
Fisheries Service, decided in 2023, the United States Court of Appeals
for the D.C. Circuit held that applying the principle is a blunt tool
that can distort the decision-making process and is, therefore
unlawful. The case involved a challenge to a 2021 biological opinion
issued by NMFS regarding the effects of several fisheries along the
East Coast on species listed under the ESA, including effects of the
lobster fishery on the North Atlantic Right Whale. NMFS explained that
when analyzing the effects of the lobster fishery on the Right Whale,
it resolved uncertainties in favor of the species. The D.C. Circuit
rejected that approach, reasoning that the role of NMFS when issuing a
biological opinion under section 7 of the ESA is to provide expert
assistance by making predictions about the effects of the proposed
action on the listed species using the best available scientific
information.
Below I discuss three examples of reliance on the precautionary
principle to justify agency decision-making under the MMPA and ESA that
are, in my view, unlawful.
Right Whale Vessel Speed Rule
One example of reliance on the precautionary principle to justify
agency decision-making is the NMFS vessel speed rule. NMFS adopted the
vessel speed rule in 2008, imposing a speed limit of 10 knots on most
vessels equal to or greater than 65 feet in length across a number of
geographic areas along the Eastern Seaboard to reduce the likelihood of
death or injury of Right Whales due to vessel collisions. In 2022, NMFS
proposed to expand the vessel speed rule to smaller vessels 35 to 65
feet in length and to a more expansive geographic area that includes
the coasts of every state on the Eastern Seaboard from Florida to
Massachusetts. In January 2025, NMFS withdrew the proposed rule though
the 2008 rule remains in effect.
The purpose of the rule, according to NMFS, is to reduce Right
Whale mortality. The range of the Right Whale population in the
Atlantic Ocean extends from coastal waters in the United States and
Canada across the Atlantic to coastal waters of northern Europe though
scientists believe the population is concentrated along the Eastern
Seaboard of the U.S. and Canada. The species experienced a significant
population decline due to whaling in the 19th and 20th centuries, but
the population made progress toward recovery over the period 1990-2010.
Since 2010, the population has declined from an estimated 470 whales to
370 whales. Vessel strikes and entanglement in fishing gear are
believed to be the two leading causes of Right Whale mortality though
estimates generated from modeling are freighted with uncertainty.
In its 2022 proposed rule, NMFS reported that between 2008 and 2022
there were 12 Right Whale vessel strikes in U.S. waters. The agency
further indicated that 5 of these 12 strikes involved vessels between
35 and 65 feet in length. During that same period, there were more than
5.1 million offshore fishing trips along the Eastern Seaboard by
vessels 35 to 65 feet in length. These data demonstrate that the
probability that a vessel between 35 and 65 feet in length operating
along the Eastern Seaboard would strike a Right Whale is less than one
in a million.
The proposed rule exemplifies one circumstance in which the
precautionary principle can result in an absurd outcome, that is, when
it leads to regulation of a vast amount of human activity that causes
no harm for the purpose of curbing a miniscule amount of human activity
that causes harm. An analog would be the imposition of a speed limit on
roads within Desert Tortoise habitat across the American Southwest.
Even more problematic is the lack of a legitimate legal basis in the
MMPA or the ESA for either vessel speed rule. In both rules, NMFS
references provisions that grant the agency general rulemaking
authority. Section 112(a) provides NMFS with authority to promulgate
regulations that are ``necessary and appropriate'' to carry out the
purposes of the MMPA. And section 11(g) provides NMFS authority ``to
promulgate regulations as may be appropriate to enforce'' the ESA. But
these sources of authority do not provide the agency with authority to
act as a legislative body; they are subject to the major questions
doctrine and nondelegation doctrine that are rooted in the separation
of powers reflected in the Constitution.
Turning first to the MMPA, that Act does not authorize NMFS to
promulgate rules that prohibit conduct that has a very remote
probability of causing ``take'' of marine mammals. In fact, the
legislative history of the MMPA and regulations promulgated by NMFS
both establish that accidental take is not prohibited under the MMPA.
For example, the legislative history of the MMPA includes the statement
that ``take'' under the MMPA ``is not intended to mean the killing of a
marine mammal by a vessel or its appurtenances as the result of an
accident or Act of God.'' House Conf. Rep. 92-1488. Consistent with
this legislative history, NMFS regulations define ``take'' under the
MMPA to extend to ``the negligent or intentional operation of an
aircraft or vessel.'' 50 C.F.R. 216.3. A vessel collision with a Right
Whale, which has a very low probability of occurring, is de facto
accidental and, therefore, cannot be prohibited ``take.'' To wit, the
prohibition of a million vessel trips that occur without a collision
with a Right Whale to prevent a single vessel trip that leads to an
accidental collision with a Right Whale is not a legitimate exercise of
regulatory authority.
Turning next to the ESA, the Act does not authorize NMFS to
promulgate rules that prohibit conduct that has a very remote
probability of causing ``take'' of listed species. Rather, section 9 of
the ESA prohibits ``take'' of endangered species. The means (or
``policy instruments'') that Congress included in the ESA to implement
the ``take'' prohibition are twofold: the enforcement provisions in
section 11 that authorize NMFS as well as citizens to initiate lawsuits
to enforce the prohibition and the procedures in section 7 and 10 that
provide processes for entities undertaking federal and non-federal
actions, respectively, to obtain authorization for ``take'' incidental
to otherwise lawful activity. Those means that Congress included in the
ESA do not include regulations to prevent take. The vessel speed rule
purports to impose an enforceable requirement on vessel operators under
the ESA, even when those operators have not engaged in prohibited take
of Right Whales and there is a de minimis risk that their conduct could
result in prohibited take. Further, compliance with the rule does not
immunize the vessel operator from liability for take in the unlikely
event that even operative at the slower speed the vessel collides with
a Right Whale.
Negligible Impact Determination
A second example of reliance on the precautionary principle to
justify agency decision-making is the guidance on negligible impact
determinations under the MMPA issued by NMFS in 2020. Section 102 of
the MMPA generally prohibits ``take'' of marine mammals and section 3
defines ``take'' to include the actual or attempted harassment,
hunting, capturing, or killing of marine mammals. However, section 101
of the MMPA includes exceptions to the ``take'' prohibition. Among
these is section 101(a)(5)(E), which provides that NMFS shall allow the
incidental taking of ESA listed marine mammals by persons using vessels
of the United States and those vessels which have valid federal fishing
permits while engaged in commercial fishing if NMFS makes certain
determinations. Section 101(a)(5)(E) applies in tandem with section 118
to commercial fishery operations that impact ESA listed marine mammals.
Under section 101(a)(5)(E), NMFS must determine, after notice and
an opportunity for public comment, that: (1) incidental mortality and
serious injury from commercial fisheries will have a ``negligible
impact'' on the affected marine mammal; (2) a recovery plan has been
developed or is being developed for the marine mammal under the ESA;
and (3) where required under section 118 of the MMPA, a monitoring plan
has been developed and a take reduction plan has been developed or is
being developed for such marine mammal. In other words, NMFS is
required to make a negligible impact determination in order to
authorize take due to commercial fishery operations.
Section 118, meanwhile, imposes additional requirements governing
the taking of marine mammals incidental to commercial fishing. For
example, under section 118(f)(1), the Secretary must ``develop and
implement a take reduction plan designed to assist in the recovery or
prevent the depletion of each strategic stock which interacts with a
commercial fishery.'' These take reduction plans are developed by take
reduction teams and must include information on the number of animals
being killed or seriously injured annually, recommended measures to
reduce mortality and serious injury, and recommended dates for
achieving the plan objectives.
As this very brief description of the regulatory requirements
applicable to commercial fishing operations under the MMPA
demonstrates, there are layers of requirements applicable to such
operations. The requirement that incidental mortality and serious
injury from commercial fishery operations will have a ``negligible
impact'' on the affected species or stock is but one of these
requirements, but it has outsized importance due to NMFS's
interpretation of the specific provision. To begin with, the negligible
impact determination guidance is notable because it interprets the term
``negligible impact'' as applied to commercial fisheries but was not
subjected to notice and comment. But more importantly, the guidance
establishes a negligible impact threshold for commercial fisheries that
is unduly burdensome and, in some instances, unattainable. The formula
for that threshold is:
NITs = Nmin x 0.5 Rmax x 0.013
where NITs is the negligible impact threshold for a single
fishery, Nmin is the minimum abundance estimate for the
species or stock, and Rmax is the maximum net productivity
of the species of stock.
At each step, NMFS builds in an assumption based on the
precautionary principle. So, with respect to abundance, rather than use
the most likely abundance estimate, NMFS uses the minimum abundance
estimate. NMFS then multiplies this minimum abundance estimate by one-
half the maximum net productivity rate (where the maximum net
productivity rate is the rate that will result in the optimum
sustainable population of the species, a term defined in section 3 of
the MMPA). Finally, as NMFS acknowledges expressly in the guidance, the
agency multiplies the first two variables by 0.013 (or 1.3 percent) to
generate a negligible impact threshold for the specific fishery under
consideration. By purposely tipping the scale at each step, NMFS
compounds its distortion of the decision-making process.
The negligible impact determination guidance has the effect of
curtailing or possibly shutting down commercial fisheries. The exercise
of such authority, which has vast economic significance, arguably goes
beyond the authority delegated to NMFS by Congress. In addition, the
exercise of such authority via guidance rather than rulemaking that is
subject to notice and comment arguably is an end run around the
requirements of the Administrative Procedure Act. Finally, use of the
precautionary principle at each step in the process of making
negligible impact determinations distorts the decision-making process
by inflating the effects of any given commercial fishery on a protected
marine mammal and causing needless economic dislocation across multiple
commercial fisheries.
Bone Cave Harvestman Listing
A third example of reliance on the precautionary principle to
justify agency decision-making is the continued listing of the Bone
Cave Harvestman by USFWS as an endangered species under the ESA. The
Bone Cave Harvestman is a pale, orange, eyeless harvestman that is
evolutionarily adapted to spending its entire life in subterranean cave
and crevices in the Balcones Canyonlands in portions of Travis and
Williamon Counties, Texas. Very little is known about the species
despite the fact that it has been listed for more than 35 years. For
example, scientists do not understand its reproductive habits, its life
span, or the size of the species' historical and contemporary
populations. Further, there exists no data or analyses providing any
indication whether the populations of the species are growing or in
decline or whether the species' range has expanded or contracted over
time other than data regarding simple presence or absence in known
caves.
USFWS first listed the Bone Cave Harvestman in 1988 under the name
Bee Creek Cave Harvestman. At the time of the listing, the only known
occurrences of the species were in five or six caves. In deciding to
list the species on an expedited basis, USFWS described urban,
industrial, and highway expansion in the area of the recorded
occurrences as a threat to the species. In 1993, USFWS recognized the
Bone Cave Harvestman as a separate species and published a final rule
listing it as such.
In the years after its initial listing, occurrences of the species
doubled from 6 to 12 then doubled again from 12 to 24, then doubled
again from 24 to 48, then doubled again from 48 to 96, and then doubled
again from 96 to 192. The number of known occurrences now exceeds 225
caves and crevices. Common sense dictates that the species, once though
to be rare, is routinely detected within the cave habitat available to
it. Further, while little is known about the species and its population
dynamics, conservation biology suggests that each occurrence detected
does not only represent the single individual identified but rather is
representative of a population in that discrete cave or crevice, or
cluster of caves and crevices. In other words, hundreds of individual
detections does not amount to hundreds of individuals as it might for a
species such as the Grizzly Bear; instead, it amounts to many dozens or
perhaps even hundreds of populations within a meta-population.
At the same time, the primary threat to the species identified by
USFWS--development in the region--has continued apace with the growth
in number of species occurrences since the time of listing. Concrete
evidence to support the hypothetical threat posed by development to the
continued existence of the Bone Cave Harvestman remains elusive. For
example, the species continues to persist in: Inner Space Caverns, a
large commercial cave located under Interstate 35 which receives
100,000 visitors annually; in 25 caves located in a golf and retirement
community; and in a cave feared by USFWS in 1988 to no longer exist due
to a roadway extension, and in several caves located under a large
state highway.
On the other hand, at least half of all known occupied caves are
protected from land development and managed consistently with
conserving the species, many of which were preserved pursuant to local
government-sponsored habitat conservation plans approved by USFWS. The
plan implemented by the City of Austin and Travis County requires those
entities to preserve 19 caves--86 percent of the species' total known
localities within Travis County at the time USFWS approved that plan.
At least 16 of the 19 caves have been preserved to date. Just north, in
Williamson County, the County and the Williamson County Conservation
Foundation committed to preserving and managing approximately 700 acres
of land benefiting the Bone Cave Harvestman. That plan was based on the
USFWS's recovery plan in effect as of the date that plan was approved.
Under the Williamson County plan, approximately 943 acres of land have
been preserved and new localities of the species have been documented.
The continued listing of the Bone Cave Harvestman, which was
presumed endangered at the time of listing because of the small number
of known occurrences of the species, is evidence of cognitive bias at
USFWS. The agency continues to invoke the same narratives to justify
its listing now that were communicated at the time of the initial
listing in 1988. And the agency has put on blinders to the substantial
body of evidence that countermands that narrative. This conduct is not
decision-making on the basis of the best available scientific
information; it is based on the precautionary principle. As such, it is
unlawful.
Conclusion
NMFS and USFWS face substantial challenges as they implement the
MMPA and ESA, including imperfect information regarding the status,
threats to, and conservation needs of protected species and
politicization of agency decisions from both sides of the aisle. But
that is not grounds for giving the agencies a pass when their actions
have real world consequences for both wildlife and society. Instead,
given the stakes, NMFS and USFWS should be held to account to make
decisions on the basis of the best available scientific information
without bias and mindful of the impacts of their decisions on every-day
Americans and America's wildlife.
______
Questions Submitted for the Record to Paul Weiland, Partner,
Nossaman LLC
Questions Submitted by Representative Wittman
Question 1. Too often, insufficient information is used to create
MMPA-related rules even when almost zero takes or incidents occur. It
seems that many of these rules have been promulgated ``by analogy.''
The differences in large marine mammal populations in offshore and
inshore waters are significant. We don't see whales and manatees and
sea otters up in the Chesapeake Bay. The agencies implementing and
enforcing MMPA should recognize these differences. Why, in your
opinion, why would we place additional MMPA enforcement onto industries
that don't even impact marine mammals in the first place? And how can
we ensure accurate data collection of impacts on mammal populations to
prevent disruptions to inland fisheries?''
Answer. In general, the Marine Mammal Protection Act (MMPA)
requires National Marine Fisheries Service (NMFS) to use the best
scientific information available. Congress does not define the term
``best scientific information available'' in the MMPA, but it is
logically defined to mean the best scientific information available at
the time of the agency action or determination, including credible and
reliable data, quantitative analyses, and conceptual and numerical
models, taking into account the reliability and the known or potential
sources of error, and carried out using prevailing principles, methods,
tools, and professional standards of practice. The best scientific
information should be impartially gathered and objectively evaluated in
accordance with its reliability and scientific rigor; it should not be
distorted by applying policy judgments such as erring on the side of
the species. When NMFS personnel depart from value-neutral assessment
of the best scientific information by putting a thumb on the scale, the
agency is more likely to regulate (or over-regulate) activities that do
not harm marine mammals disrupting otherwise lawful and productive
conduct.
NMFS relies on models to inform its assessment of the status of
marine mammals and their habitats and the effects of human activities
on them. Quantitative models, developed by NMFS staff and informed by a
combination of available data and assumptions, allow NMFS to draw
inferences regarding the size and distribution of marine mammal
populations and the factors that affect the population growth rate of
those populations including those factors that contribute to deaths of
marine mammals. These models are a simplification of reality as the
National Academies explained in the 2007 volume Models in Environmental
Regulatory Decision Making, and model outputs (or predictions) often
are characterized by substantial uncertainty.
Because available data regarding marine mammals is limited, NMFS
must make assumptions when building and running models to draw
inferences, such as inferences regarding the relative contribution of
various factors to marine mammal deaths. For example, with respect to
the North Atlantic Right Whale, NMFS has gathered data regarding
entanglements in fishing gear. Over the period 2010-2019, NMFS
identified 112 instances of observed Right Whale entanglements in
fishing gear. In roughly three quarters of those cases, NMFS could not
determine whether the country of origin of the gear was Canada or the
U.S. But to run its quantitative model to develop projections of the
relative contribution of the U.S. lobster fishery and other U.S. and
Canadian fisheries to Right Whale entanglements and deaths, NMFS built
an assumption into the model that entanglements of unknown origin
should be split 50-50 between the two countries.
In arriving at this 50-50 split, NMFS discarded available
scientific data it had on entanglements of known origin. In roughly one
quarter of the cases of observed entanglements, NMFS was able to
determine the country of origin. And in those cases, 69 percent were
attributable to Canada and 31 percent were attributable to the U.S. The
agency could have apportioned unassigned observed entanglements based
on those observed data, yet the agency chose to use a 50-50 split.
Assumptions in agency models such as this have led agencies to
misestimate the status, trend, and/or distribution of species as well
as the risk posed to species due to human activities. The best means to
reduce the potential for errors that could harm wildlife and society
are to design and implement data collection regimes that are focused on
highest priority management needs and to continue to develop and
implement best practices (ser forth in the above definition of the best
scientific information available) in a manner intended to minimize
uncertainties and also to daylight any assumptions that stem from such
uncertainties. As important, when the agency shifts from value-neutral
development and articulation of the best scientific information
available to value-laden policy judgments regarding areas of
uncertainty, it should engage stakeholders in the decision-making
process and be transparent about the policy judgments applied.
______
Ms. Hageman. Thank you, Mr. Weiland. I think that that is
referred to as opportunity costs.
I now recognize Mr. Moore for 5 minutes.
STATEMENT OF PARKER MOORE, PRINCIPAL, BEVERIDGE AND DIAMOND PC,
WASHINGTON, D.C.
Mr. Moore. Chair Hageman, Ranking Member Hoyle, and
esteemed members of the Subcommittee, thank you for the
opportunity to speak today. My name is Parker Moore. I am an
environmental attorney with Beveridge and Diamond, and have
over 20 years of experience advising on the Endangered Species
Act and the Marine Mammal Protection Act. I am here today to
highlight two critical problems with the implementation of
these important laws: regulatory overreach and conflicting
permitting processes.
I want to start with regulatory overreach. A striking
example of this overreach involves the Vessel Speed Rule which
NOAA Fisheries, or NMFS, purportedly issued under section
112(a) of the Marine Mammal Protection Act and Section 11(f) of
the Endangered Species Act.
As Mr. Weiland just explained, initially issued in 2008,
these regulations impose a 10-knot speed limit on boats 65 feet
or longer across vast areas of the Atlantic Ocean. NMFS says
that it issued the Vessel Speed Rule to reduce the potential
for those boats to collide with an endangered North Atlantic
right whale. In 2022, NMFS proposed expanding these rules to
include boats as small as 35 feet and to extend the 10-knot
speed limit to a much larger area of the ocean for up to 7
months every year. This proposal would have impacted more than
63,000 additional boats annually.
The problem with this is twofold. First is a lack of
authority. Neither the Endangered Species Act nor the Marine
Mammal Protection Act grants NMFS the power to develop or
implement prophylactic regulations aimed at reducing the
possibility that an already unlikely event like a whale
collision might occur. In fact, over the past two decades NMFS
has explicitly requested, and Congress has considered, several
bills that specifically would grant NMFS this power. None of
those bills passed.
The second problem is the lack of a factual or scientific
basis. The proposed expansion of the Vessel Speed Rule to cover
boats 35 to 65 feet was a solution in search of a problem.
NMFS's own data showed that there is a far greater chance of a
boat being struck by lightning than there is of a boat striking
a right whale. For example, in the waters off South Carolina
there has been only one documented boat collision with a right
whale, ever. That happened 15 years ago. It involved a boat
longer than 65 feet, and NMFS doesn't even know how fast that
boat was traveling at the time. The statistics are similar for
the great majority of the Atlantic coast.
Fortunately, faced with bipartisan opposition and over
90,000 public comments, NMFS quietly withdrew the proposal last
month. However, the original 2008 rule remains in place for
boats longer than 65 feet, prohibiting them from traveling any
faster than the speed of an average golf cart, and there is
every indication that NMFS will attempt to revive the expanded
speed limit in the future.
The second major implementation issue lies in the
incompatible requirements between the ESA and the MMPA for
authorizing incidental take. While both laws prohibit the
unauthorized take of protected species, each offers pathways
for permitting incidental species impacts. However, when a
species is protected under both laws, these processes can
become unworkable.
Under the ESA, incidental take can be authorized with an
incidental take statement for federally connected activities or
with an incidental take permit for non-Federal activities. But
if the species in question is a threatened or endangered marine
mammal, those ESA authorizations are not available until the
activity first receives a separate incidental take permit under
the Marine Mammal Protection Act. That creates a huge problem
because, at best, an MMPA permit often takes years to obtain,
but in many cases it takes forever. And that is because an MMPA
permit is not available at all.
This problem frequently arises with the Florida manatee.
The manatee is an ESA-listed threatened species. It also is a
marine mammal. So before the Fish and Wildlife Service can
issue an incidental take permit or an incidental take statement
to an activity that may affect a manatee, that activity must
first receive an MMPA permit. But that can't happen. The
Service has never taken the necessary regulatory steps that
would allow it to issue an incidental take permit for the
manatee under the MMPA. As a result, projects like marinas,
boat ramps, and docks throughout the Southeast that may affect
even a single manatee can never receive the necessary Federal
permits they require, and that cannot be what Congress
intended.
In conclusion, while these implementation problems are
significant, they could easily be fixed with two
straightforward statutory amendments, which I have provided in
my written testimony. These targeted reforms will realign
Federal agency implementation with congressional intent, reduce
regulatory burden, and maintain strong protections for at-risk
species.
Thank you for considering my testimony. I am happy to
answer any questions.
[The prepared statement of Mr. Moore follows:]
Prepared Statement of W. Parker Moore, Environmental Attorney
Thank you for inviting me to testify at this hearing. My name is W.
Parker Moore, and I am a principal at the law firm of Beveridge &
Diamond, P.C. Although I represent a variety of clients on protected
species issues under both the Endangered Species Act (ESA) and the
Marine Mammal Protection Act (MMPA), I am appearing here today solely
in my personal capacity. The views I express today are my own. I am not
representing my law firm, any client of my law firm, or any other
party.
I have extensive experience with both the ESA and the MMPA. I have
been advising clients on legal issues that arise under both statutes
for over 20 years. In addition, before becoming a lawyer, I served as a
wetlands and species ecologist for an environmental consulting firm,
during which time I worked on a variety of at-risk species issues. Over
the course of my career, I have had a front row seat to the
continuously evolving implementation of the federal species protection
laws and been on the battle lines as each successive administration
works to advance its priorities under them. But for all the differences
among the administrations, one thing has remained very much the same
over the years: regulatory agency overreach and an incompatible
permitting system. Today, I would like to share with you just two of
the many recent examples of these problems under the ESA and MMPA and
then offer simple ideas for fixing them.
I. Agency Overreach Under the ESA and MMPA: The Vessel Speed Rules
The ESA and the MMPA each grant the U.S. Fish and Wildlife Service
(USFWS) (through the Department of the Interior) and NOAA Fisheries or
``NMFS'' (through the Department of Commerce) significant authority to
promulgate regulations needed to administer the statutes.
Unfortunately, at times, the agencies have stretched that authority
beyond reason.
Section 112(a) of the MMPA provides that ``[t]he Secretary, in
consultation with any other Federal agency to the extent that such
agency may be affected, shall prescribe such regulations as are
necessary and appropriate to carry out the purposes of this
subchapter.'' 16 U.S.C. Sec. 1382(a). While the phrase ``necessary and
appropriate'' generally is interpreted broadly, it is not limitless.
Among other things, Congress made clear that the agency rulemaking
authority is confined to issuing regulations that are necessary to
administer Subchapter II of the MMPA. Congress used Subchapter II for
many important things--establishing a moratorium on taking marine
mammals, imposing strict prohibitions on unauthorized take, creating an
incidental take permitting program, codifying a detailed framework for
regulating federally-jurisdictional commercial fishing operations, and
incorporating specific penalty and enforcement provisions--each of
which is set forth in great detail. Id. Sec. Sec. 1371-1389.
Section 11(f) of the ESA is even narrower. That provision states in
pertinent part that ``[t]he Secretary [is] authorized to promulgate
such regulations as may be appropriate to enforce this chapter . . .
.'' 16 U.S.C. Sec. 1540(f). Thus, the plain language of this provision
explicitly limits the agency rulemaking authority to regulations that
will further statutory enforcement.
Notwithstanding the limitations on agency regulatory authority that
Congress articulated in Section 112(a) of the MMPA and in Section 11(f)
of the ESA, the agencies have acted to broaden their authority over
time through the rulemaking process. A now-infamous example of this is
NMFS's imposition of a 10-knot speed limit on tens of thousands of
boats traveling across huge swaths of the Atlantic Ocean--ostensibly to
reduce the possibility that those boats might collide with the
endangered North Atlantic Right Whale (NARW).
NMFS first promulgated this regulation in 2008, calling it the
Final Rule to Implement Speed Restrictions to Reduce the Threat of Ship
Collisions with North Atlantic Right Whales. 73 Fed. Reg. 60173 (Oct.
10, 2008) (``Vessel Speed Rule I''). Under Vessel Speed Rule I, NMSF
designated ten ``Seasonal Management Areas'' (SMAs) between
Massachusetts and Florida and imposed a 10-knot speed limit on
virtually all private boats 65' or longer traveling within one of those
SMAs when a NARW might be passing through the area.
The SMAs are not small, and the time period when the 10-knot speed
limit applies within them is not short. Nor is the number of boats
affected trivial. Together, the SMAs span tens of thousands of square
miles of ocean off of the Atlantic Coast. The speed limit applies for 5
months or more in much of that area. And there are thousands of boats
affected by this each year. In contrast, NMFS estimated that there were
only 313 NARW in the western Atlantic Ocean when it issued this rule,
making it exceedingly unlikely any boat subject to the rule ever would
encounter a right whale. Nevertheless, NMFS determined that ``a rule to
limit vessel speeds in times and areas where right whales are most
likely to occur is necessary.'' 73 Fed. Reg. at 60174.
During public review on the proposal to issue Vessel Speed Rule I,
a commenter questioned NMSF's authority to promulgate and enforce a
regulatory speed limit intended to reduce the mere possibility of
impacts to protected whales. Id. at 60182. NMFS assured the commenter
that Congress empowered the agency to promulgate the prophylactic
regulation under its general rulemaking authorities in Section 112(a)
of the MMPA and Section 11(f) of the ESA. Id. NMSF's assurances
notwithstanding, there is ample evidence that neither NMFS nor Congress
believed the agency's regulatory authority extended so far.
On numerous occasions since 2000, Congress has considered statutory
amendments specifically to empower NMFS with the prophylactic
rulemaking authority that the agency maintained it already had when it
issued Vessel Speed Rule I in 2008. For example, in 2003, the Bush
Administration proposed an MMPA reauthorization bill that, among other
things, would have authorized NMFS to issue regulations, like speed
restrictions, aimed at reducing the potential for vessel collisions
with whales. During the corresponding Senate Hearing on the so-called
Future of the Marine Mammal Protection Act, agency witnesses testified
specifically on this issue. S. Hrg. 108-981 (July 16, 2003). Those
witnesses plainly recognized that NMFS had no such authority and,
therefore, requested a statutory amendment to provide it:
Dr. Rebecca Lent, Deputy Assistant Administrator for
Fisheries at NMFS, testified that ``[t]he bill provides
authorization to use authorities to reduce the occurrence
of ship strikes on whales, a very big concern for right
whales.'' Dr. Lent further testified that ``[t]he
Administration bill would authorize the Secretary to use
the various authorities available under the MMPA to reduce
the occurrence of ship strikes of whales and to encourage
the development of methods to avoid ship strikes.'' Id.
David Cottingham, Executive Director of the Marine Mammal
Commission, a body established under the MMPA to advise
NMFS on implementing the statute, testified that ``[t]he
Administration bill highlights the ship strike issue as one
requiring priority attention. One of the difficulties
impeding progress in addressing this source of mortality is
a lack of agreement concerning the existing legal
authorities that can be brought to bear on the issue.'' Id.
Notwithstanding these requests to amend the MMPA to authorize NMFS to
regulate boat speed in the name of whale protection, Congress did not
pass the bill.
In the years following NMFS's failed attempt to expand its MMPA
rulemaking authority, several bills were introduced in both the U.S.
Senate and the U.S. House of Representatives to grant the agency
regulatory authority to restrict boat speeds. See, e.g., S. 2657 (2008)
(proposed amendment to require NMFS to issue a rule imposing boat speed
limits and to codify that rule under the MMPA); H.R. 5536 (2008)
(same); H.R. 5957 (2021) (proposed amendment to authorize NMFS to
develop and implement boat speed limits remarkably similar to the
Vessel Speed Rule). But each time the measure failed. There is no
plausible reason that an agency would request a statutory amendment to
provide it with authority it already has. Nor is there a plausible
reason that Congress would repeatedly consider amending a statute to
grant an agency power that already exists. The only rational
explanation is that NMFS does not have the rulemaking authority it
claims.
Despite lacking the statutory authority to develop and implement
prophylactic regulations like Vessel Speed Rule I, NMFS faced enormous
pressure from environmental groups to expand the rule even further. In
2012 and again in 2020, a coalition of environmental groups petitioned
NMFS to broaden the scope of the speed limit regulations dramatically
to cover an even larger area of the Atlantic Ocean and tens of
thousands of more boats. When NMFS did not immediately grant those
petitions, the coalition sued, alleging the agency unreasonably delayed
acting. Whale and Dolphin Conservation v. NMFS, No. 21-00112 (D.D.C.
Jan. 13, 2021). To its credit, NMFS initially fought that lawsuit. But
as litigation continued into the following year, NMFS eventually gave
in to the environmental groups' demands, and on August 1, 2022, it
issued the proposed Amendments to the North Atlantic Right Whale Vessel
Strike Reduction Rule, 87 Fed. Reg. 46921 (Aug. 1, 2022) (``Vessel
Speed Rule II'').
NMFS's proposed Vessel Speed Rule II was breathtaking in scope.
Under the proposal, NMFS sought to establish five enormous Seasonal
Speed Zones (SSZs) that would blanket the Atlantic Ocean from the East
Coast to as far as 90 miles offshore, a total area spanning tens of
thousands of square miles, and expand the applicability of its 10-knot
speed limit in those areas to cover all boats 35' and longer for up to
seven months of each year. Yet again, NMFS claimed Section 112(a) of
the MMPA and Section 11(f) of the ESA gave it the power to promulgate
such a rule. 87 Fed. Reg. at 46934. But, again, they do not.
What is more, NMFS's sweeping proposal was as unnecessary as it was
unauthorized. There simply was no scientific or factual basis for the
agency to expand the 10-knot speed limit to restrict the travel of an
additional 63,000 boats each year across virtually the entire eastern
seaboard.
The waters off the coast of South Carolina provide a perfect
example of this. Under proposed Vessel Speed Rule II, NMFS sought to
establish a massive new restricted speed area (the ``South Carolina
SSZ'') encompassing nearly 6,600 square miles that would apply to all
boats 35' and longer traveling within it from November 1 to April 15
each year. But NMFS was unable to identify a factual basis for
instituting such a restriction off of the South Carolina coast. Indeed,
the agency's proposal identified just a single recorded NARW collision
as having ever occurred anywhere in the waters off South Carolina. That
isolated incident occurred nearly 15 years ago, the vessel involved was
more than 65 feet long, and the vessel's speed is unknown. In other
words, NMFS claimed it was necessary to create the South Carolina SSZ
and impose a draconian speed limit on all 35'-65' boats within it to
protect NARWs, but it could not identify even a single instance of one
of those boats having ever collided with a right whale while traveling
at any speed in the waters off the South Carolina coast. The proposal
therefore was guarding against something that had never happened before
in recorded history.
Nor was there any reason to think it could happen in the future.
NMFS's own modeling accompanying the proposed rule predicted a
microscopic mortality risk of 0.00000 to 0.00003 from all boats
(including those >65') across the overwhelming majority of the South
Carolina SSZ. See NOAA Technical Memorandum NMFS-SEFSC-757, Assessing
the risk of vessel strike mortality in North Atlantic right whales
along the U.S. East Coast, at 30-35 (May 2022).
That disconnect between reality and the proposed rule was not
limited to only South Carolina's waters, however. Based on NMFS's own
data, since 2017, there have been at most six NARW collisions anywhere
between Ossabaw Island, Georgia and Elberon, New Jersey that even
potentially involved a 35'-65' boat. During that same period, there
were an estimated 5.1 million recreational fishing trips by boats of
that size in those same waters. Given that those trips represented just
a fraction of the total trips by all boats of that size through those
areas, there is at best a one-in-one million chance of those boats
colliding with a right whale for the majority of the U.S. coast. In
other words, in any given year, a boater is significantly more likely
to be struck by lightning than to strike a right whale.
That NMSF relied on authority it does not have to solve a problem
that does not exist is bad enough. But it did so while ignoring the
consequences of its actions. The agency claimed that the proposed rule
would cause roughly $1 million in impacts to recreational boating
interests nationwide. NMFS, 2022 Draft Regulatory Impact Review and
Initial Regulatory Flexibility Analysis (``RIR''), at 34. To calculate
that financial impact, NMFS simply estimated the total number of delay
hours boaters would experience under the rule from having to travel at
the speed of a typical golfcart and then multiplied those hours by the
national average hourly wage rate of $28.20. RIR, Appendix A, at 11.
That was it. Inexplicably, the agency never investigated or accounted
for the real-world implications of the rule. Had it done so, it would
have understood that the rule would have made recreational offshore
fishing impossible along the majority of the eastern seaboard,
decimated the recreational boating, fishing, and tourism industries
across much of the Atlantic Coast, and caused billions of dollars in
losses.
For these and other reasons, there was immediate and vocal
opposition to the proposed rule. The opposition was not confined to any
location, economic sector, or political persuasion. In addition to
boating and fishing interests, the proposal was fought by virtually
every other industry and chamber of commerce with any connection to
marine activities, along with mayors, governors, and state and federal
lawmakers. The objections were numerous, well-reasoned, and sustained.
They came from across the country and from both sides of the aisle. All
told, the agency received over 90,000 comments on the proposal.
Eventually, NMFS could no longer ignore the writing on the wall. Faced
with a near certain Congressional Review Act challenge, last month NMFS
quietly published notice that it was withdrawing the proposal,
explaining that it did not have enough time to finalize the rule before
the Trump administration took office. 90 Fed. Reg. 4711 (Jan. 16,
2025).
While the proposed Vessel Speed Rule II is gone for now, Vessel
Speed Rule I remains in place. Over the past year, NMFS has relied on
that rule to fine the operators of 65'+ boats $15,000 to $30,000 each
time they allegedly exceeded the 10-knot speed limit in one of the
massive restriction zones regardless of whether a right whale was
present anywhere in that zone. Moreover, there is every indication that
NMFS intends to make another run at promulgating Vessel Speed Rule II
as soon as a more favorable Presidential administration is in office.
And there is no reason to believe that NMFS will not try to similarly
regulate other private activities across the nation with unjustified
rules aimed not at prohibiting and preventing actual statutory
violations, but at avoiding a hypothetical violation that might occur
only if many highly unlikely circumstances were to arise
simultaneously.
To put it bluntly, precautionary rulemaking like the Vessel Speed
Rules is regulation run amok. Congress never intended it, and the ESA
and MMPA do not authorize it. But NMFS's actions demonstrate that this
needs to be made explicit in both statutes. It is imperative to correct
course so that the agencies entrusted with conserving protected species
can refocus their attention on accomplishing that cimportant goal.
II. Incompatible Permitting under the ESA and MMPA
The ESA and the MMPA are designed to protect and conserve at-risk
species and marine mammals. Congress enacted the MMPA in 1972 because
``certain species and population stocks of marine mammals are, or may
be, in danger of extinction or depletion as a result of man's
activities.'' 16 U.S.C. Sec. 1361(1). In enacting the MMPA, Congress
recognized that many marine mammal species were depleted or threatened
by human activity and that ``such species and population stocks should
not be permitted to diminish beyond the point at which they cease to be
a significant functioning element in the ecosystem of which they are a
part.'' 16 U.S.C. Sec. 1361(2). Congress enacted the ESA the following
year to ``[p]rovide 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).
But Congress also recognized that it would be infeasible to
accomplish these important goals under the ESA and the MMPA by simply
prohibiting all impacts to those species at all times and from every
activity. As a result, while both statutes strictly prohibit
unauthorized ``take'' of the species they protect, they also provide
mechanisms to apply to USFWS and NMFS (together, ``the Services'') to
authorize species impacts that are incidental to otherwise lawful
activities. By including these permitting mechanisms in the statutes,
Congress intended to create an effective conservation framework without
unreasonably impeding the innumerable private, commercial, and
governmental needs that arise each day across this country.
Unfortunately, it has become increasingly clear that the permitting
mechanisms under the two statutes are incompatible when the species at
issue is a marine mammal that also is listed as threatened or
endangered under the ESA. At the root of this problem are two statutory
provisions: Section 7(b)(4)(C) of the ESA (16 U.S.C.
Sec. 1536(b)(4)(C)) and Section 101(a)(5) of the MMPA (16 U.S.C.
Sec. 1271(a)(5)).
By way of background, Section 9 of the ESA, together with the
Services' ESA regulations, prohibits the unauthorized ``take'' of
threatened and endangered species. 16 U.S.C. Sec. 1538(a)(1)(B). ESA
compliance for activities that will take a listed species can be
achieved in two ways. For activities with a federal nexus (i.e.,
activities requiring a federal permit, taking place on federal lands,
or relying on federal funds), compliance is achieved through Section 7
of the ESA (16 U.S.C. Sec. 1536(a)(2)). Under Section 7, before the
activity may be approved, the federal authorizing agency must consult
with one or both of the Services to ensure that allowing the proposed
activity to proceed would not ``jeopardize the continued existence'' of
any threatened or endangered species. Upon making that ``no jeopardy''
determination and completing Section 7 consultation, the Services will
issue an incidental take statement (ITS), which exempts the anticipated
impacts to the listed species from the ESA's take prohibition. That
exemption functions much like a permit by making any species take that
occurs lawful.
For activities that do not have a federal nexus, ESA compliance is
achieved by obtaining an incidental take permit (ITP) from the Services
under Section 10 of the statute (16 U.S.C. Sec. 1539(a)(1)(B)). An ITP
authorizes take of the listed species so long as certain requirements
are met, including that the permitted impacts ``would not appreciably
reduce the likelihood of the survival and recovery of the species in
the wild.'' Id. Sec. 1539(b)(2)(B). Although ITPs are issued under
Section 10 of the ESA, the Services have taken the position that the
issuance of an ITP is itself a federal action that triggers Section 7
consultation. As a result, even though Section 7 consultation
explicitly is reserved only for federal activities and Section 10
permits are available only for non-federal activities that will not
significantly impair a species' overall population health, the Services
curiously have concluded that they must consult with themselves under
Section 7 before they may issue an ITP under Section 10. Rightly or
wrongly, that means that before the Services issue an ITP or an ITS
authorizing or exempting take of a threatened or endangered species,
they first must complete Section 7 consultation and determine that the
proposed activity will not ``jeopardize the continued existence'' of
the species.
That the ESA compliance mechanisms for every activity, whether
federal or non-federal, involve Section 7 consultation is particularly
consequential when the listed species at issue also is a marine mammal.
This is because, pursuant to Section 7(b)(4)(C) of the statute, after
completing a Section 7 consultation, the Services may not issue an ITS
exempting take of a threatened or endangered marine mammal under the
ESA unless the Services already have issued a separate incidental take
permit for that species under Section 101(a)(5) of the MMPA. 16 U.S.C.
Sec. 1536(b)(4)(C). This is where the incompatibility arises between
the take authorization provisions of the MMPA and the ESA.
The MMPA prohibits take of any marine mammal that has been
designated as ``depleted,'' except under an incidental take
authorization issued under Section 101(a)(5) of the statute. The MMPA
provides two options for such authorizations. First, the Services may
issue an ``incidental harassment authorization'' for activities that
will harass a marine mammal through injury or disturbance for a period
of up to one year. 16 U.S.C. Sec. 1371(a)(5)(D). Second, for activities
lasting more than a year or having the potential to seriously injure or
kill a marine mammal, the Services may permit the impact by issuing a
``letter of authorization.'' Id. Sec. 1371(a)(5)(A)(i). But this letter
of authorization approach is available only if USFWS or NMFS already
has promulgated a regulation removing that species from the MMPA's
moratorium on taking marine mammals. Id. It is this second type of MMPA
authorization that is incompatible with Section 7 of the ESA.
This statutory incompatibility results from Section 7(b)(4)(C),
which, as explained above, prohibits the Services from issuing an
Endangered Species Act incidental take statement for a threatened or
endangered marine mammal unless the take-causing activity separately
has received incidental take authorization under Section 101(a)(5) of
the Marine Mammal Protection Act. That means that even though the
Services have concluded that an activity will not jeopardize the
species and is otherwise consistent with the requirements of the ESA--
the statute Congress enacted specifically to protect, conserve, and
recover imperiled species--the activity still cannot proceed without an
MMPA authorization simply because the species also happens to be a
marine mammal. Given the legislative intent underlying the ESA, such
redundancy is unnecessary. More importantly, however, it is unworkable.
At best, requiring a proposed activity to undergo ESA Section 7
consultation and separately receive an MMPA incidental take
authorization adds significant unnecessary cost and time. Completing
formal consultation under Section 7 of the ESA typically takes more
than six months and can cost the proponent of the activity hundreds of
thousands of dollars. Requiring separate MMPA authorization makes the
situation even worse because completing that process generally requires
an additional nine to 18 months or longer. But this ``best case''
scenario is achievable only if USFWS or NMFS already has promulgated a
regulation under the MMPA removing that species from the statute's
moratorium on marine mammal take.
At the other end of the spectrum is the worst case scenario under
which no MMPA authorization is available at all. That situation arises
anytime the species at issue is an ESA-listed marine mammal for which
USFWS or NMFS has not promulgated a regulation exempting the species
from the MMPA's moratorium on species take. Absent such a regulation,
Section 101(a)(5) of the MMPA prohibits the Services from issuing an
incidental take authorization for the activity. That, in turn, means
that the activity cannot satisfy Section 7(b)(4)(C) of the ESA and the
Services, therefore, cannot issue an ESA incidental take statement for
that activity. And without an incidental take statement covering
impacts from the activity at issue, the federal action agency that
initiated Section 7 consultation cannot comply with the Endangered
Species Act and, therefore, must reject the application to undertake to
proposed activity.
This drastic outcome unfortunately is not uncommon. As just one
example, this problem frequently arises in the Southeast U.S. within
the range of the West Indian manatee. The manatee is a beloved marine
mammal that USFWS has listed as a threatened species under the ESA but
has not promulgated a regulation removing the species from the MMPA's
moratorium on marine mammal take. As a result, any proposed activity
that could incidentally take even a single manatee cannot be approved
under the MMPA and, therefore, cannot receive an incidental take
statement under the ESA. This has resulted in scores of proposed
activities and projects throughout the Southeast--including marinas,
boat ramps, docks, and industrial and commercial developments--being
denied federal permits and approvals simply because the threatened
species that would be impacted happens to be a manatee, rather than
some other threatened or endangered species.
It is hard to imagine that this is what Congress intended with
Section 7(b)(4)(C) of the ESA. When Congress required activities
undergoing Section 7 consultation to secure an MMPA authorization
before receiving an ESA incidental take statement, it could not have
anticipated that MMPA authorizations would never be available for
particular species of marine mammals. But that is exactly what has
happened, and it has resulted in an arbitrary application of the law.
As things currently stand, the Services freely authorize incidental
take of threatened and endangered non-marine mammal species from an
activity, but cannot authorize incidental take of certain threatened
and endangered marine mammal species that would face identical impacts
from that activity. While all threatened and endangered species should
receive the full protections that Congress intended for them under the
ESA, continued differential treatment of listed marine mammal species
serves little conservation or recovery purpose. Congress, therefore,
should amend the MMPA and the ESA to harmonize the two statutes.
* * * * *
In conclusion, while the ESA and the MMPA serve important national
goals, the federal implementing agencies are interpreting and
implementing both statutes in ways that Congress never intended. The
result has been sweeping regulatory restrictions on private activities
across broad swaths of the country's lands and oceans and arbitrary
denials of federal permits. Because these problems arise from the
provisions of the ESA and MMPA, only a legislative change can fix them.
This could be accomplished with two straightforward steps:
1. Amend Section 112(a) of the MMPA (16 U.S.C. Sec. 1382(a)) and
Section 11(f) of the ESA (16 U.S.C. 1540(f)) to clarify
that the authority to promulgate regulations that are
``necessary'' and/or ``appropriate'' under each statute
does not include authority to promulgate prophylactic
regulations designed to reduce the mere potential for
private activities to impact species; and
2. Amend Section 101(a) of the MMPA (16 U.S.C. Sec. 1371(a)) to
include an exception to the moratorium on taking a marine
mammal to the extent that taking is covered by an
incidental take statement to a biological opinion issued
under Section 7(b)(4) of the ESA (16 U.S.C.
Sec. 1536(b)(4)), and make a conforming amendment to the
ESA by striking Section 7(b)(4)(C) (16 U.S.C.
Sec. 1536(b)(4)(C)).
Making these simple changes would realign federal agency
implementation of the ESA and MMPA with the legislative frameworks that
Congress designed, foster better governmental decision-making, and
promote continued conservation and recovery of at-risk species.
Thank you for considering this testimony.
______
Ms. Hageman. Thank you. I want to thank all of the
witnesses for your incredibly helpful testimony, and I am now
going to recognize Members for 5 minutes each for their
questions, and I am going to begin with me.
Before that I just want to make one point, which is that
offshore wind farms, or the impact of offshore wind farms on
the North Atlantic right whale has been well documented, yet
politics prevents the Fish and Wildlife Service from
acknowledging that, and instead they are misdirecting assets
and resources towards going after things such as our fishing
industry. And I think that that epitomizes one of the primary
problems with the ESA and the MMPA.
Mr. Vecchione, in your testimony you state that the
shifting legal landscape of the last 2 years culminating in
Loper Bright, Relentless now means that Congress can reassert
itself. Loper Bright is thus an administrative decision, and it
is not a policy decision. What does that mean for Congress
going forward?
Mr. Vecchione. It means that you can't rely on a friend in
the White House to fix a lot of problems by just changing the
regulation. If you see a problem, Congress now has to address
it. They can't, I say that one of the lawyers arguing this case
told the court that sometimes Congress, it is divided in two,
if they think the guy in the White House is of their own party,
they don't want to do anything because they will just get the
right outcome. And then if he is in the other party, they will
fight whatever anyone is doing.
Now Congress, if it sees a problem, is going to have to
address it because there is a very good chance, particularly
when new things come along, that the courts won't allow the
agencies to say this new thing is just like the old thing, and
to regulate it. So that is, in a nutshell, what I think is
going on.
Ms. Hageman. Well, I think that, as practitioners, we need
to be better at our job. I think that we, as Members of
Congress, need to do more in terms of providing definitions,
perhaps putting preambles on our acts, but we need to be
writing legislation that is not vague and ambiguous so that we
don't need to worry about the courts interpreting or
reinterpreting what we intend to do.
Mr. Weiland, when the services are performing a Section 7
consultation under the ESA, is it ever appropriate for them to
pretend that an existing structure such as a dam does not
exist?
Mr. Weiland. The short answer, Chair, is no, it is not. But
I will say it is more complicated under the consultation
provisions as they have been interpreted in the Act.
So the purpose of consultation is to analyze the effects of
the proposed action on the listed species and, if there is
designated critical habitat, on it is habitat. But that
requires differentiation between the environmental baseline for
the species and the proposed action, so you have to look at
what are the impacts from the action of the species and,
separately, what is the environmental baseline. And the
existence of the dam, for example, should be in the baseline,
and should not be considered part of the action. So, someone
who is changing operations of the dam, for example, should not
have to account for the presence of the dam during the
consultation. That should be in the baseline.
In addition, I would say the pre-consultation operations,
let's say you are getting a FERC relicensing. The pre-
consultation operation should also be in the baseline. So, you
have the dam, you are operating a certain way, and what you are
consulting on is your change to the operations, and that is the
extent of the effects of the action as I see it.
But I will say in the case law and agency interpretation,
these things are not as clear, and there are divergent views
about this issue. And as a consequence of that, there are many
baseline activities that get captured up in the effects of the
action. And the consequence of that is there are more jeopardy
determinations that there need to be----
Ms. Hageman. That is right.
Mr. Weiland [continuing]. And there are more requirements
for minimization and mitigation based upon these baseline
effects, rather than the effects of the action.
Ms. Hageman. Well, in fact, the past administration, they
were notorious for trying to exclude these structures like dams
in the baseline, and therefore they were restricting more
projects, and limiting more projects and finding more jeopardy.
And I think that that is a problem, and I have experienced it
for years working on the Platte River program as an example,
where they literally ignored the dams that existed as part of
the baseline, and thereby creating problems of trying to put
together a program for the endangered and threatened species.
Again, Mr. Weiland, another question. The MMPA
authorization standards require the government to find that an
action will have a ``negligible impact and effect on small
numbers of a species or stock.'' What does the small number
standard really achieve?
Mr. Weiland. There is very little in the legislative
history about that that I am aware of. So, I would say, because
of the negligible impact standard, the addition of small
numbers to that seems arguably redundant.
And I would go back to comments that have already been made
by my colleagues and by members of this Committee. When all of
these Acts were passed in the 1970s, it was contemplated there
would be regular reauthorization. Same with the Clean Air Act
and Clean Water Act, and same with these others. And during
that period and into the 1980s there was a number of these
acts, and there were significant changes. For example, the
Endangered Species Act in 1982. And that has essentially
halted. And as a consequence, we are left with acts that are
really being interpreted by agency and by judges, rather than
Congress going in and being able to revisit and clean those up.
And I think it is unfair to fault Congress in the 1970s. It
was doing the best it could. But if you were to go to a doctor
and they were to say, ``I am going to give you the same advice
I would have given you in the 1970s,'' you would go to another
doctor, right? So, if Congress can update the Act, we will all
be better off for it.
Ms. Hageman. I think that that is excellent advice. And
with that, my 5 minutes are expired and so I am going to go to
Representative Magaziner for his 5 minutes of questioning.
Thank you.
Mr. Magaziner. Thank you, Chair. And before I begin my
prepared remarks I just want to respond to something that the
Chair said in her statement.
Unlike in her State, we have offshore wind in my State, and
we can tell you from experience that there has not been a
single documented right whale death that can be tied to
offshore wind. There have been whale deaths tied to fishing
gear entanglements, to vessel strikes. Not a single one tied to
offshore wind.
So, we can have a conversation about what is appropriate
for a Vessel Speed Rule, where it should be imposed, and what
size vessels should be included. That is a legitimate
conversation to have. But it has to be a fact-based
conversation.
And I would just remind everyone there is far more seismic
activity that happens with oil and gas drilling in the Gulf
that impacts marine life than happens with offshore wind
development. So no, offshore wind has not been linked to right
whale deaths, does not cause cancer, et cetera, et cetera.
But listen, I am here today to talk about another issue
that I haven't heard any of my Republican colleagues raise so
far. We know that Endangered Species Act consultations can
delay projects, but I haven't heard anyone talk about how the
chaotic staffing cuts made by Elon Musk and his DOGE interns
are making the problem worse as we speak.
Last week, more than 400 staff members at the Fish and
Wildlife Service were fired by the children that Elon Musk has
put in charge of the Federal Government. And it has been
reported that they are planning on firing 1,000 more at NOAA as
early as this week. These are the agencies that list and delist
endangered and threatened species, that draft recovery plans,
and issue permits.
And who is making these firing decisions? Are they experts
in fish and wildlife? No. Do they know anything about the
permitting process? No. It is Elon Musk and unelected interns
sitting at desks in Washington, D.C., unelected tech bros, none
of whom know a thing about fish or wildlife or permitting. So
let me explain to them what these firings at Fish and Wildlife
and NOAA mean.
First, they create a backlog of endangered species list
petitions to list and delist species. Species at risk of going
extinct take longer to get protected, and species that are no
longer at risk take longer to get delisted when you do not have
the staffing to process these petitions.
Second, firing staff at these agencies reduces their
ability to issue permits, permits to allow important projects
to proceed, including construction, infrastructure, forestry,
agricultural projects, water resource projects, and energy
development. So we have talked a lot in this Committee about
permitting reform, and that is an important conversation to
have. But be clear. You can reform all you want, but no one
gets any permits to do anything if there is no staff available
to process and approve those permits.
Third, firing scientists at the Fish and Wildlife Service
and the National Marine and Fisheries Service hurts the animals
on this planet that the Endangered Species Act was designed to
protect. When experts are allowed to do their jobs, recovery
efforts lead to vulnerable species bouncing back. We have seen
that with sea lions and gray wolves and countless other
examples. But when scientists who work on endangered species
protection are fired, these species can go extinct waiting for
these protections to arrive.
So Mr. Rohlf, does firing staff indiscriminately at Fish
and Wildlife and NOAA increase or decrease the processing
backlog for petitions and permits?
Mr. Rohlf. Well, of course, the firings that we have seen
really decreases the capability of the agencies to go through
the legally-mandated processes in the Endangered Species Act
and Marine Mammal Protection Act.
And as I said in my remarks, courts are absolutely clear
that, unless Federal agencies go through those statutorily-
mandated processes, courts will simply enjoin further----
Mr. Magaziner. Right.
Mr. Rohlf [continuing]. Federal agency actions that affect
listed species and their protected habitat.
Mr. Magaziner. Courts will err on the side of caution, so
we could actually be slowing down development. We could be
slowing down permitting by indiscriminately firing staff.
And I just want to make the point again about the process
here, because they are not consulting with people on the
ground, they are not consulting with the agencies themselves to
say, hey, which positions may be expendable and which aren't.
This is literally a bunch of kids sitting behind computer
screens who have no background at all in the subject matter, no
background at all in permitting, just making decisions based on
very low information. And it is incredibly disruptive.
So with that, I am out of time and I will yield back.
Ms. Hageman. The Chair now recognizes Mr. McDowell for 5
minutes of questioning.
Mr. McDowell. Thank you, Madam Chair, and thank you to the
witnesses for testifying before the Committee today.
As we look at the Endangered Species Act, it is critical
that we strike a balance protecting vulnerable species without
imposing unnecessary regulations that harm local economies or
infringe on private property rights. We must adopt a common-
sense approach to streamline the permitting process and protect
private property rights, ensuring that landowners are not
penalized for their stewardship.
It is also important that we don't allow the Endangered
Species Act to become Hotel California, where once you arrive
you can never leave. At what point are the grizzly and the gray
wolf populations going to be huntable again?
It is long past time to turn these decisions over to the
States that know their own needs. Sportsmen and women are our
country's best conservationists. Look no further than the
National Wild Turkey Federation who saved the wild turkey
population through their efforts. Wild turkeys are thriving
because hunters came together to find a solution. Or look at
the work that Delta Waterfowl is doing protecting the
populations of canvasbacks or the northern pintail. If we stop
burdensome over-regulation by the Federal Government, States
and groups like this could better manage the populations that
they have proven that they can. We should, as a Federal
Government, be out of the business of conservation through
feeling-based bureaucracy, and allow States to deal with the
issues they know better than we do.
Mr. Weiland, in your testimony you discuss the harms caused
by agencies imposing harsh regulations. How can we ensure that
the implementation of the Endangered Species Act strikes a
balance between protecting endangered species and minimizing
the economic burdens it places on industries such as
agriculture, energy, and construction?
Mr. Weiland. The most effective role Congress can take, of
course, is to reauthorize laws, as I suggested previously, and
to write clear laws.
And as issues arise, whether it is with the executive
branch or in the judicial branch, there is opportunity. An
example is my colleague, Mr. Rohlf, made a reference to TVA v.
Hill, a Supreme Court case from 1978. At the time of that case,
the Endangered Species Act consultation provisions didn't have,
essentially, a release valve. So, the question in the case was
whether to stop a dam that was nearly completed, and the court
said whatever the cost, as Mr. Rohlf alluded to, the dam had to
be stopped.
Now, in response to that, in 1978 Congress promptly enacted
amendments to provide a release valve, the so-called God squad,
or Endangered Species Committee provisions of the Act, and it
was very clear that that was a response to the TVA v. Hill
decision, and the legislative history demonstrates that fact.
So, I think when even the Supreme Court acts, there is an
opportunity for this body to essentially rebalance the Act as
it is being interpreted. And certainly the same goes for
Federal agencies.
Mr. McDowell. Thank you.
Mr. Moore, in your testimony you describe your experience
working with the Endangered Species Act and the Marine Mammal
Protection Act. Given the unintended consequences the ESA has
had on job creation in certain industries, what changes would
you propose to ensure that conservation efforts do not come at
the expense of American workers and economic growth?
Mr. Moore. Thank you for that question.
As mentioned a little bit earlier, there are two specific
categories of amendments to both the Endangered Species Act and
the Marine Mammal Protection Act that I recommend, and I have
suggested amendments in my written testimony.
The short of it, though, is that eliminating the
irreconcilable permitting hurdles between the two statutes is
absolutely fundamental to allowing those two statutes to
function in the way that Congress originally designed. As it
currently stands, a project that may affect a threatened or
endangered species can receive a permit under the ESA, while if
that species also is a marine mammal it cannot receive a permit
under the Marine Mammal Protection Act. And because it can't
receive that MMPA permit, it can't then receive the ESA permit
because the MMPA permit has to come first. So relying on the
statute that is intended to protect and conserve at-risk
species is sufficient to provide the necessary protections to
marine mammals.
By the same token, there is a hurdle to Section 7
consultation under the Endangered Species Act, and that is the
expansion of the scope of impacts that are taken into
consideration, the environmental baseline, and a tendency of
agencies and some Federal courts to consider a species that is
already listed as endangered to be at risk of extinction. Well,
that is the very definition of endangered.
So, the interpretation that a species is at risk of
extinction during Section 7 consultation means that as a
baseline condition the agency cannot issue a single impact
permit for that species. That needs to be removed. You look at
the environmental baseline and run from there.
Mr. McDowell. Thank you.
I yield back.
Ms. Hageman. Thank you. And we like witnesses who make
recommendations of things that we can do better legislatively,
so thank you for that.
The Chair now recognizes Mr. Golden for 5 minutes of
questioning.
Mr. Golden. Thank you, Madam Chair. I will direct this one
to the panel, although I don't intend for all of you to answer
it. So maybe quickly decide amongst yourselves, but just
starting with the basics because I am new here.
How does the Endangered Species Act and Marine Mammal
Protection Act allow for a balancing between species protection
alongside economic impacts on regulated industries and the
impacted communities and people who support them and depend on
them?
Mr. Weiland. All right, I will start.
So, one thing is, in spite of the decision in TVA v. Hill,
or even if one assumes that that decision is still good law,
the Act does not, neither Act requires agencies to put blinders
on to the impacts of their decisions. So, whether it is
consultation under Section 7 or the incidental take permitting
provisions under Section 10, in both cases the agencies can
consider the effects, for example, of mitigation, alternative
mitigation on regulated industries.
And with respect to fishing, for example, there may be
technological fixes that are available, or closures as options,
and one may be preferable to the other from a fishery
perspective. And at times I think the agencies are not creative
about thinking of alternative regulatory mechanisms. A good
example would be the Vessel Speed Rule, where now we have
pretty advanced technologies that can be employed on boats to
avoid collisions or to at least drastically minimize those
occurring. So, there may be alternative regulatory mechanisms
that are available, and there is nothing in those Acts that
precludes them. But the agencies need to be encouraged to
evaluate those fully----
Mr. Golden. Sure.
Mr. Weiland [continuing]. When they are looking at----
Mr. Golden. You just gave an example where they are not
taking into account technology or alternatives. Can you give me
an example where Federal agencies have actually found that
balance between conservation mandates with a need for practical
or enforceable regulations that account for economic reality?
Mr. Weiland. I think in the context of the MMPA, for
example, and the lobster fishery, the process that the Fishery
Management Council uses, where it takes input from a wide
variety of interests including States and fishermen and
conservationists, allows for proposals from States like Maine
to do things like gear marking as one tool that can be used in
order to assess the impacts of State-specific fisheries or
fisheries with different kinds of gear, and to tailor
mitigation in the future as a consequence of those.
And certainly, National Marine Fisheries Service has shown
an opening in the past to using those types of different
alternatives. I do think that there are many circumstances
where they have done so.
Mr. Golden. Do any of you have an example where Congress
has played a role in modifying the ESA and the MMPA as it is
implemented, any successful legislative adjustments to these
laws that you viewed as positive?
Mr. Vecchione. I have it in my testimony, and so does Mr.
Weiland, which is after the TVA. I went to the Little Tennessee
River when I was a boy to canoe on it before it got dammed
over, so I remember this very well. And it was stopped by the
Supreme Court. And a Democratic Congress and a Democratic
President amended it to make it more scientific, aspects had to
be taken over. And the D.C. Circuit just recognized that
recently in a case that is in my testimony.
So what happened from the Supreme Court to the amendment in
1978 that is in my testimony from that case will have a good
example of that.
Mr. Rohlf. Well, I would love to pick up on that because,
indeed, Congress did amend the statute after TVA v. Hill in
1978. It added the amendments allowing for exemptions to
Section 7 of the Endangered Species Act. In fact, TVA is a
great example. That big, important dam actually went through
the so-called God squad or extinction committee process, where
the Endangered Species Committee did indeed consider whether to
exempt that dam. And it found that just completing the 5
percent of that dam that was remaining was not economical,
produced zero economic benefit, with just 5 percent of the cost
of the entire dam. So, the Endangered Species Committee
unanimously did not grant that exemption.
So it is a good illustration of there are very few absolute
conflicts between protecting endangered species and going
forward with pork barrel projects like that.
Mr. Moore. It is also a good example of how the Endangered
Species Act doesn't actually function that well when it comes
to conserving at-risk species. And the reason it is a good
example is because the snail darter, the species that was at
issue in TVA v. Hill, it turned out it wasn't endangered in the
first place. The Fish and Wildlife Service listed the species
under the understanding that the species occurred in only a
very localized issue within the river. After further
investigation and further studies, it turns out it was far more
prevalent and existed in many more locations across the
Southeast.
Mr. Rohlf. And it was still listed as threatened.
Ms. Hageman. The Chair now recognizes Mr. Wittman for 5
minutes of questioning.
Dr. Wittman. Thank you, Madam Chair. I would like to thank
our witnesses for joining us today. I want to look at where we
are today and what the new administration should do versus what
the previous administration did in relation to the Marine
Mammal Protection Act, and looking at how you look at the
burden that these new regulations place on other uses there,
and as we talked about trying to create that balance.
Mr. Weiland, you talked about the element of assuring that
there is a precautionary principle that has taken place, and
what that is versus the scientific approach. As I look at
precautionary approach, I see that wearing seat belts can have
an impact on the 40,000 deaths we have each year in auto
accidents. I also see, too, that constructing levees are a
precautionary approach against flooding. All those things make
sense to me as far as precautionary approach.
Creating a regulation, though, based on a one in a million
chance that a right whale gets struck by a vessel that is less
than 35 feet doesn't appear to me to be logical, and is in big,
big imbalance with the things that we need to be doing to have
thoughtful regulations. Last year the Biden administration
wanted to expand the Marine Mammal Protection Act to
aquaculture, which is puzzling to me because, when you have
aquaculture, especially in areas where you don't have these
large marine mammals, it just seems illogical to me.
So, Mr. Weiland, I want to ask you, can you discuss the
concept of a precautionary measure, and how we look at that in
relation to the strong science that would look at how you
should create policy?
And then give me your perspective on how that scientific
approach should be pursued, and how these determinations are
made, not this existential precautionary approach that we saw
in the previous administration.
Mr. Weiland. Thanks for the question. One of the challenges
is because the precautionary approach is ingrained in agency
culture at the National Marine Fisheries Service and Fish and
Wildlife Service, it is integrated into the everyday workings
of agency staff, and it is a policy, really, a policy approach.
But it is very difficult, if not impossible, to distinguish it
from science in decision-making. And I will just give one
example.
So agencies use models, they call them life cycle models,
quantitative models, to understand the status and trends of
species and the impacts of various activities on species. When
they build these models they have data that they build into
them, but they also have to make assumptions because we don't
have all the data we want. And it is those assumptions that
frequently involve use of a precautionary approach.
An example with regard to the North Atlantic right whale is
the model that was used when evaluating the right whale. And
the impacts of the lobster fishery on the right whale assumed
that there is no natural mortality of right whales, that all
mortality is caused----
Dr. Wittman. Yes.
Mr. Weiland [continuing]. By human activity. And the
consequence of that is that when you are allocating
responsibility, it is all getting allocated between different
human activities. So, in that circumstance, that is a
precautionary approach that is built into the model. That is
hidden when the model output comes out, right? You get an
estimate of how much vessel collisions are likely to cause harm
to right whales, how much offshore wind, how much fisheries
are. And in each case it is slightly inflated because there is
no assumption that there is any natural mortality.
Dr. Wittman. Yes.
Mr. Weiland. And there are many examples of this. And the
challenge with this is that I see the precautionary approach as
something that should happen at a policy level, not at a staff
or science level. And it should be out in the open and not
hidden.
Dr. Wittman. Yes.
Mr. Weiland. So, that is really where I think we need to
have change in terms of how the agencies approach precaution.
Dr. Wittman. Another element too we see, regulations
promulgated by analogy. A great example is in the Chesapeake
Bay. We don't have large marine mammals in the Chesapeake Bay,
no whales in the Chesapeake Bay, no manatees, no sea otters
there, you name it. And yet they wanted to put a restriction on
tethered buoys for aquaculture operations. If you don't put a
tethered buoy there, then you don't know where your cages are
that have the oysters in there, which, by the way, are great
biological filters for the Bay, have shown to greatly improve
water quality, yet this practice would essentially ban that. So
to me, there is this separation of science and fact and
decision-making.
Mr. Weiland, give me your perspective too on how you see
that disconnect there, and how those sorts of decisions can
essentially put out of business an industry that is having a
great, great impact both economically and environmentally.
Mr. Weiland, let me do this. In respect for the other
Members that want a question, if I can get you to submit your
response to that in writing for the record, and I will yield
back the balance of my time.
Ms. Hageman. Wonderful, thank you. The Chair now recognizes
Ms. Elfreth for her 5 minutes of questioning.
Ms. Elfreth. Thank you very much, Madam Chair, and thank
you to the witnesses.
First, let me just say it warms my heart to hear you talk
about availing yourselves of the judiciary branch. When you
disagree with the executive branch and when you disagree with
the ruling of the judiciary, you come to the legislative branch
to seek a remedy. That is exactly how our founders framed out
our system of government.
So I want to respond just to some assertions made by the
witnesses during this hearing about the need to throw this idea
back to the States. And just like clean air and clean water or
polluted air or polluted water, wildlife doesn't tend to
respect arbitrary political boundaries. So, when we talk about
the stewardship of our most vulnerable wildlife, I am not sure
that a patchwork approach from the States would be the right
solution. And to the witness' point, I don't think it would
provide any kind of certainty for the business community either
by going about it in that manner.
I do want to point out that when the bill, the ESA, was
passed and was challenged in court, SCOTUS, and actually, Chief
Justice Warren Burger, who was a President Nixon appointee,
said that it was the most comprehensive legislation for the
preservation of endangered species ever enacted by any Nation.
I am going to highlight that word, ``comprehensive,'' because I
think it is important here.
And I want to drill down on this idea about best available
science being not certain in all cases. I think when we talk
about much of the body of the work of this Committee, best
available science is important because the inputs are going to
change on a near daily basis. Inputs of weather, inputs of
pollution, inputs of over-development are going to have an
impact on the species, endangered species and the marine
mammals that we are discussing here.
So, for Mr. Rohlf, we have talked a little bit about maybe
where some people feel like the two laws that we are talking
about have broken down, can you talk a little bit about the
success stories that we have also seen here, and how best
available science actually informed the success stories brought
about by these two pieces of legislation?
Mr. Rohlf. Sure. We can talk about examples all day long,
and there are many examples. Salmon and steelhead in the
Columbia River basin, for example, are at least beginning a
road to recovery because of protections of the Endangered
Species Act that have started to address problems with those
species. Changed Federal dam operations, for example, to be
more conducive to the needs of those species, and the rights of
Indian Tribes in the Northwest to take fish at all their usual
and accustomed places.
But I think something we haven't talked much about is the
fact that, if you look writ large, the Endangered Species Act
has been tremendously successful. We talk about a few high-
profile instances. But if you look across the country, there
are thousands of informal and formal consultations under the
Section 7 process of the Endangered Species Act, where Federal
agencies have to consult with the National Marine Fisheries
Service or the Fish and Wildlife Service. In almost all of
those instances, those consultations either end informally or
with a biological opinion saying the action can proceed. Or, in
the rare, rare cases where there is actually a jeopardy
biological opinion, it has been decades that a jeopardy
biological opinion has been issued without reasonable and
prudent alternatives that allow the agency action to go
forward, essentially as planned, that is economically and
legally feasible.
So, the Endangered Species Act really doesn't stand in the
way of any development. At the most, it generally imposes
modest restrictions to minimize the take of endangered species
and ensure that their continued existence is not jeopardized.
Ms. Elfreth. Thank you very much for that illumination, and
it is always easy to highlight the worst-case scenarios, but
not always the success stories and how----
Mr. Rohlf. That is the day-to-day of the Endangered Species
Act.
Ms. Elfreth. I very much----
Mr. Rohlf. Success stories.
Ms. Elfreth. I very much appreciate that. We have talked a
lot about private industry and some challenges to growth there
from these two bills, but I also want to point out, serving on
the Armed Services Committee as well, that there are success
stories even within the DoD of these two laws actually helping
with readiness, actually helping with installation security.
And in fact, if at least a number of the former Joint Chiefs of
Staff across multiple administrations have talked about,
actually the greatest threat to readiness and national security
is not either of these laws, but it is actually the threat of
climate change. And I hope that we can begin to discuss some of
those impacts in this Committee, as well.
And with that I yield my time. Thank you, Madam Chair.
Ms. Hageman. Thank you. The Chair now recognizes Mr. Bentz
for 5 minutes of questioning.
Mr. Bentz. Thank you, Madam Chair, and thank you all for
being here.
Professor Rohlf, the phrase you used was, ``no matter what
the cost,'' and I think that was indeed in the Supreme Court
opinion from years and years ago. But I will share a couple of
costs with you.
In Oregon the spotted frog estimate for recovery is $2.7
billion. That is the number from ODF&W, Oregon Department of
Fish and Wildlife.
On the four lower Snake River dams there has been an effort
to have them breached. I don't know if you have been part of
that litigation or not. It has been going on for a very long
time. But the cost of replacing the 3,000 megawatts of peaking
power that those dams provide would be somewhere between $3 to
$12 billion. That is to replace the generation capacity, it is
not to take into account the loss of those facilities, which
would be also in the billions of dollars. So, this is going to
be justified with the ESA. There is no other justification for
doing it, and particularly when we lose the navigation.
So the phrase, ``no matter the cost,'' do you take the
position, then, that we should be putting $2.7 billion into the
recovery of the spotted frog, and that we should be spending
somewhere between, I am going to say, a low of $6 billion and a
high of $20 billion to take out those dams?
Mr. Rohlf. Well, Congressman, I am not sure where you get
your figures, but I am quite confident that the State of Oregon
could recover spotted frogs for a fraction of those billions of
dollars. The Oregon Department of Fish and Wildlife hasn't
spent that much money probably in its entire existence.
As far as the lower Snake River dams go, as you well know,
there are studies underway investigating the replacement of the
energy output of those four lower Snake River dams with
renewable energy. And in fact, there are efforts underway now
spearheaded by the Tribes to develop renewable energy resources
which would provide the region with clean energy to replace
that of the dams, allow those dams to be decommissioned, and to
fulfill the United States treaty obligations to Northwest
Tribes----
Mr. Bentz. I don't think----
Mr. Rohlf [continuing]. To allow rural communities to
thrive with----
Mr. Bentz. Yes, forgive me for interrupting, Professor.
Mr. Rohlf [continuing]. With recovered fisheries.
Mr. Bentz. But, it is irksome that you would gloss over the
cost. And the money that is going to the Tribes was done so, in
my opinion and based on the hearing we held up in Kennewick
where 400 people showed up to this Committee, a field hearing,
to oppose exactly what you are saying. The $400 million or
whatever it is that is going to the Tribes, you are kind of
glossing over that part.
You are also glossing over the part that those dams provide
stable power, and that solar, which they are going to be using,
is intermittent. And thus you need about three times the amount
until we get a battery that works off of solar.
Anyway, I do want to go back to one thing, and it is what I
call legal extortion under the guise of mitigation. And what we
have then is the ODF&W or somebody else coming in and saying,
you know what? You don't have to comply if you mitigate. If you
go buy a ranch and give it to us, then that will offset the
loss of whatever, a right-of-way for a power line. This
extortionary device is terrible for all kinds of reasons.
But my question to you is, how do we appropriately measure
the amount of proper mitigation?
Mr. Rohlf. Under the Endangered Species Act, for example,
the statute requires agencies to use the best available science
in all cases. So, in the rare instances, for example, when an
agency finds jeopardy to the continued existence of a listed
species, which, as I indicated, is extremely rare, in those
cases the agency has to prescribe reasonable and prudent
alternatives----
Mr. Bentz. I am going to have to----
Mr. Rohlf [continuing]. And those have to be economically
viable.
Mr. Bentz. I am going to have to interrupt again. Extremely
rare? I don't know how many thousands of people lost their jobs
in Oregon because of the spotted owl. Literally, I don't. It is
literally tens of thousands of people. You say extremely rare?
It doesn't have to be anything other than rare when it has that
kind of impact when it does come into play. I don't know why
you say that when the consequences are so incredibly negative.
So please, please, please, when you try to minimize the true
consequence, please call out the damage being done.
And I yield back.
Ms. Hageman. Thank you, and excellent points. The Chair now
recognizes Mr. Soto for 5 minutes of questioning.
Mr. Soto. Thank you, Madam Chair. The hearing started out
with real promise. I was thinking Congress is going to reassert
ourselves in stopping unelected bureaucrats from stifling the
will of the people. I was like, OK, we are going to talk about
the DOGE disaster today. But actually, we are talking about
well-meaning Federal experts trying to stop pollution, protect
our environment, and protect endangered species while an
unelected billionaire takes a chainsaw to the Federal workforce
with zero strategy, zero strategy, and you all are doing
nothing about it.
I just want to start with a little DOGE top five. We saw
lies about millions of people collecting Social Security that
wasn't true, having to roll back from $80-something billion to
$7 billion, all these alleged savings, including the top five
had to be pulled down. And then we see all these folks have to
be rehired, like nuclear scientists, and folks who are bird flu
experts, and the guy who has the keys to Yosemite National Park
who apparently was fired, as well, which is nuts, by the way.
But we are talking about 1,000 National Park rangers doing
amazing work, 120 National Wildlife Refuge employees, a 5
percent cut. And that was after a 31 percent reduction over the
past 15 years. In Florida we have 29 national wildlife refuges,
including in Cape Canaveral, Everglades, Ocala National Forest,
the Pelican Island, and Indian River Lagoon. We saw 16 Florida
employees fired just recently, and the only thing I can make of
it, of these mass firings, is that they have one commonality.
These are probationary employees. They could be experts. They
could be the top managers. They could be the first-time
employees. But all of them are in the government for one to 3
years, and they don't have rights yet. So, that is why we have
had to rehire back some of these nuclear scientists and bird
flu experts and, again, the guy with the only keys to Yosemite
National Park, who was fired for some reason.
Mr. Rohlf, what is this going to mean as we are trying to
work on the Kissimmee River, making it a wild and scenic river,
and protecting the Everglades and some of these other key
things we are working on? What do these cuts mean to these
types of efforts?
Mr. Rohlf. Well, obviously, actions just simply can't take
place without people to carry them out, and especially in the
Endangered Species, Marine Mammal Protection Act context. We
need expert scientists who know what they are doing. We talk
about balance or trying to find ways that actions can go
forward, economic actions can go forward while we protect
endangered species. Well, doing so requires expertise. And we
are losing that expertise.
I had a Fish and Wildlife Service special agent come and
speak to my wildlife law class on Monday. He puts his life on
the line to go after the bad guys that are importing and
exporting endangered species parts. People from his agency are
being randomly fired. He is getting emails saying, ``Justify
what you did last week.'' The morale of those agencies is in
the tubes, and offices are empty. We simply can't keep going
like this.
And I think what I have heard here today is absolutely
correct. Congress needs to do its job and make sure that the
expenditures that it has appropriated to run these agencies and
make all of this work can actually do their jobs.
Mr. Soto. And I appreciate that. One of the common things
in Florida, we have a lot of these areas where we are
protecting things like the manatee and the scrub-jay, the snail
kite, and some of these others. These are some great areas with
ranches or other farmland with national parks, and they are
some of the top recreation places in Central Florida. We have
massive bass tournaments on some of these lakes, and we have
folks come in from all over the Nation. We have folks with
hunting leases in and around these lands.
The thing that isn't highlighted a lot is that the
Endangered Species Act allows us to help protect some of the
best recreational land and local ranches in Florida. And it has
stopped this onslaught of condos and suburbs out to the
hinterlands of Central Florida. So, it is not an either-or.
This is how we preserve some of the best lands for recreation,
for agriculture, for species, and for a water supply that is in
great danger, and something we have to keep in mind as we are
looking at this.
And I yield back.
Ms. Hageman. Thank you. The Chair now recognizes Chairman
Westerman for 5 minutes of questioning.
Mr. Westerman. Thank you, Chair Hageman. Again, thank you
to the witnesses for being here.
Mr. Moore, we often hear about the difficulties of the ESA
Section 7 consultation process, and a major part of that
concern revolves around the scope in which the agencies look at
a proposed action. In your experience, has U.S. Fish and
Wildlife and National Marine Fisheries looked outside the scope
of a proposed action during a consultation, and therefore
prolonging the whole consultation process and increasing costs
for project proponents?
Mr. Moore. It is a tough question. The answer to that is it
depends, and that is one of the things about working with the
services is it depends on which office you are working with.
And that is one of the difficult challenges in working under
the species protection laws is that there is no uniformity from
place to place.
In general, they look at the action area when you are going
through Section 7 consultation. The action area is supposed to
be the extent to which any environmental effect from the
proposed action could occur. Traditionally, if you are looking
at an impact to a waterway from construction activity, you look
at in-stream construction, you look at activities that take
place outside of the water, as well, including sedimentation
that could enter into the waterway.
And the services originally would look at the reasonable
distance in which sediment would travel. More recently what has
happened is that, through actions of some within the services
and more frequently with some of the Federal courts, they have
required you to go much further. So, rather than looking at a
couple of hundred yards in which sediment might travel before
it disperses or dilutes, you are looking at 30 or 40 miles
downstream, which causes the impacts analysis to sweep in every
single species that occurs there, even though there is no
remote potential for that species to be impacted.
The result of that is that you sweep in an entire suite of
additional species that have to be analyzed, which makes the
job more complicated, which causes more time and more money,
and it stretches the Service's resources to an even greater
extent, which doesn't allow them to do the job that they have
been tasked with doing for other projects.
So yes, it is kind of a compounding effect that happens,
and it all comes back to what is actually the impact of a
project. And it is not 30 or 40 miles from the location where
it occurs.
Mr. Westerman. It does sound like it can be a complicated
process. Do you have recommendations on how to improve that
process, where it does, for lack of a better word, use common
sense when looking at one of these actions?
Mr. Moore. Absolutely. I mean, the science is the science.
It is not something that courts are in a position to interpret.
It is not something that opponent groups are in a position to
say what is the best science.
Fish and Wildlife Service, in particular, for a long time
recognized the bounds that a traditional impact would expand or
extend. That has been replaced with the opinions of various
individuals that have caused courts and some within the Fish
and Wildlife Service to broaden their interpretations.
Establishing something more uniform for a typical type of
impact, the distance that extends the scope of the actual
effects, would really streamline the process.
Mr. Westerman. Thank you.
Mr. Weiland, I have used more time on that, but I think we
got some good information on it, but I was wanting to ask you
about using the phrase ``cognitive bias'' to describe U.S. Fish
and Wildlife mentality towards the Bone Cave harvestman
species. Could you elaborate on what you meant by that?
Mr. Weiland. Sure, happy to do so. So cognitive bias is
essentially where there is a systematic bias in one's thinking
away from rational thinking, and they are prevalent for
everybody in society. It is just the way we work.
But in the conservation context it frequently comes up, for
example, well, let me start with confirmation bias. And
confirmation bias is just the idea that once you have a set
idea, that you are going to view any information that comes in
that confirms that idea in a way that is favorable and that
disputes that idea in a way that is not. So for example, with
regard to the Bone Cave harvestman, if you decide that it is
endangered, and that part of the reason it is endangered is
because it lives in these subterranean areas but that they
could be affected by surface activity like development of
projects, that you will continue to be concerned about that
surface activity and continue to think the species is
endangered, even when evidence to the contrary exists over
decades of time when you find it more common and able to
withstand those surface impacts.
Mr. Westerman. Thank you. We are out of time, and we will
submit some more questions for the record.
Thank you, Chair Hageman.
Ms. Hageman. Thank you, Mr. Chairman. The Chair now
recognizes Ms. Brownley for 5 minutes of questioning.
Ms. Brownley. Thank you, Madam Chair, and thank you to the
panel for being here.
We have talked a lot today already about how we really,
truly rely on these expert agencies like Fish and Wildlife and
the National Marine Fisheries Services. Professor Rohlf, can
you talk a little bit about the impacts of under-funding these
two critical agencies?
I think you were saying we need the money, and we need to
spend it, and we need to execute what we have. But I think, at
least in my opinion, I think we are sorely under-funded in
terms of our goal of climate and protecting biodiversity and
protecting species.
Mr. Rohlf. Certainly, some criticize the Endangered Species
Act, for example, for what they see as the slow pace of species
recovery. As I indicated in my opening remarks, most species
are actually on track with the timing of their recovery plan
toward achieving recovery. But it is amazing that they are,
actually, because recovery measures are so under-funded by
Congress. We are under-investing in precisely the job that we
have given to the Fish and Wildlife Service and the National
Marine Fisheries Service to recover species, and then some
people complain about that. So if we actually adequately funded
those species or those species' recovery efforts, we would be
recovering species and removing them from the list much more
quickly.
A Member also talked about the States. And actually, the
States could have a tremendous role in preventing more species
from becoming threatened or endangered. That would be a
wonderful thing that the States could do, and especially when
people in those States complain about the Endangered Species
Act. Sure, prevent species from becoming endangered.
But those States' fish and wildlife agencies have very
little funding, as well. They spend it all on species that are
hunted or fished, and not on non-game species that desperately
need conservation. The Recovering America's Wildlife Act was
not passed by Congress. That would have been a tremendous
investment in the States for them to use their local knowledge
to protect species before they need to be listed as threatened
or endangered.
Ms. Brownley. Thank you for that. And you just mentioned
States. Is there anything more that we need to know from you in
terms of if we transferred authority away from the Federal
agencies, if we transferred those authorities to the States,
and what the impacts might be?
You just talked about what States could be doing, but with
the lack of the Federal agencies' oversight.
Mr. Rohlf. Sure. Well, of course, as I just noted, many
States----
Ms. Brownley. Yes, yes.
Mr. Rohlf [continuing]. Lack the resources to manage the
vast number of species within those States. So those agencies
would have very little to do because they would say we just
don't have the resources to do it.
But also, threatened and endangered species move around.
They occur throughout the country. So, those uniform protection
standards and management standards that are provided by the
Endangered Species Act to facilitate their recovery, in fact,
speeds their recovery with those national resources, as well as
those national standards.
Ms. Brownley. Thank you. And last, we have talked a lot
today, too, about the balance of economic interests and
environmental interests. And can you speak a little bit more to
your perception and what you see in terms of the economic
impacts?
Folks on the other side of the aisle continue to say those
impacts are very, very significant. Can you talk a little bit
more about how you see it?
Mr. Rohlf. Sure. I think it is really unfortunate that we
oftentimes get into a species versus people kind of situation.
So the President's proclamation about California water was
saying put people over fish. It is absolutely a false
dichotomy.
Ms. Brownley. Yes.
Mr. Rohlf. It turns out that people need water, just like
fish. So when we look at the management of the Bay Delta system
in the San Joaquin and the Sacramento Rivers in California,
great example. Guess what? Water needs to flow down that system
for fish, salmon, as well as fish like delta smelt. But water
needs to flow through the system to do things like prevent
saltwater intrusion from the ocean that swamps the water
delivery systems for millions of people.
So when we actually make ecosystems work better for listed
species, it helps people and it helps our economy.
Ms. Brownley. Thank you. Thank you.
And I yield back, Madam Chair.
Ms. Hageman. Thank you. The Chair now recognizes Mr.
LaMalfa for 5 minutes of questioning.
Mr. LaMalfa. Oh, I am sure glad we swayed into water in
California.
[Laughter.]
Mr. LaMalfa. During that, you talk about that Bay Delta
issue there, where I can show you the stats where 29 million
acre-feet during a 15-month period, oh, a little over a year
ago in the snapshot, 29 million acre-feet entered the Delta,
and 22 million feet went out in that period.
And people got to capture only a little bit of that water.
And even then, when you do, the water is stored behind dams. It
has to be let out only for maintaining a temperature of one
degree cooler in a river and is unavailable to agriculture,
which is being devastated in the San Joaquin Valley. And the
agriculture in that area would be thriving more so if you could
have the groundwater recharge for the subsidence they are
worried about under what is called the sigma law, but we can't
get there, so we don't get to run the pumps except for 40
percent of capacity to fill the reservoirs. It goes on and on.
And it is interesting to hear in Committee today that the
Endangered Species Act really has no price, and I also hear
there is no limit, and that is what it more feels like for
farmers and ranchers and timber people and miners that need to
mine the products if we are going to electrify everything in
this country. But let me narrow it back down to a question
here.
Mr. Weiland, we have great concerns about what is going on
at one of the agencies, at NMFS, and it is probably across the
board at many others, that the staff there will place mandates
on infrastructure projects that would have billions of dollars
in direct or indirect economic impact, and are able to do so
with little or no approval from political appointees above them
or us in Congress. So giving mid-level personnel this amount of
authority without accountability to Congress, as we are
accountable to the people, it seems to me like it is a real
recipe for disaster, since some people don't care what any of
this costs on recovering a species.
[Chart]
Mr. LaMalfa. And then, look at the ratio of recovered
species on this graph I have here: 1,732 are listed; and 11
have gone extinct during that time; 21 were delisted due to
data error. So 57 out of that 1,732 have been recovered by
whatever criteria.
So, when we give mid-level personnel this amount of
authority to name these conditions at no price, what is your
experience with this? Unfortunately, we are not made out of
money. How does this look in modern-day decision-making?
Mr. Weiland. Well, from the perspective of the regulated
community, everybody knows they really prefer predictiveness
and stability. So, one of the challenges that Mr. Parker
alluded to is that there is a lot of diversity in individual
cultures. So, for example, no big surprise that in California
the regulators can be more aggressive than in some other parts
of the country and more difficult to work with.
Mr. LaMalfa. Yes.
Mr. Weiland. Part of that has to do with the agencies
themselves, and there is no reason that at NMFS and Commerce
and Interior with the Fish and Wildlife Service they can't
exercise authority and they can't try and create uniformity.
And there is value in doing that----
Mr. LaMalfa. But there seems to be no limit on price with
them. They don't care how much it costs, it seems.
Mr. Weiland. I agree that one of the challenges is, a
common occurrence I see in California is the view of agency
personnel that their job is to protect the species, rather than
implement the Acts. And those are different, and they are only
slightly different, but importantly different, right?
Mr. LaMalfa. Yes.
Mr. Weiland. Because if you look at the Acts as a whole,
they do contain limitations on their ability to do that. So, I
think that there are, as I mentioned, there are staff that
understand that.
Mr. LaMalfa. OK.
Mr. Weiland. But their----
Mr. LaMalfa. I want to get to another question on top of
this, too. Thank you. Sorry about that.
We have in the northern part of my district and Mr. Bentz's
district, as well, a rampant wolf population that is
devastating livestock there. So, I guess I would like to ask
panelists.
At a recent hearing up there in the north, one of the
questions posed to the personnel from the government was,
``What is the right amount of wolves now?'' What number do we
have that we consider the wolf recovered, and how do we reach
the goal? Or is there actually a goal or do we just keep moving
the goal posts around?
Do you want to take a stab at that, Mr. Rohlf?
Mr. Rohlf. Sure. The statute specifies that an endangered
species is one that is in danger of extinction throughout all
or a significant portion of its range, and that decision should
be based solely on science. So we should look to the science to
determine the distribution.
Mr. LaMalfa. Well, what does the science say on how many
wolves we have until we hit the mark, hit the goal? Especially
in Northern California, there are a gazillion of them in the
upper Midwest. How many gray wolves do we need in Northern
California to hit the mark?
Mr. Rohlf. Actually, if you look at the genetic
requirements for a functional wolf population, we are not
there.
Ms. Hageman. I would fundamentally disagree with that
assertion.
Mr. LaMalfa. That is the thing. They don't have a target.
There is no number.
Ms. Hageman. But we are going to have----
Mr. LaMalfa. I yield back.
Ms. Hageman. We are out of time. I am going to have to go
on to the next questioner, and I call on Mrs. Dingell for her 5
minutes of questions.
Mrs. Dingell. Thank you, and I have a great respect for my
friend from California, and I would say that a lot of us do
care about the cost of programs, but I am going to go back to a
famous Benjamin Franklin quote: ``An ounce of prevention is
worth a pound of cure.'' So I think we need to be investing
more to keep some of these issues.
But as co-Chair of the Endangered Species Act Caucus, I
remain committed to preserving the mission of the Endangered
Species Act. For over five decades the Endangered Species Act,
or ESA, has been our Nation's most successful tool for
protecting America's imperiled wildlife. It has prevented the
extinction of some of our most beloved animals like the bald
eagle, the grizzly bear, the Florida manatee, and many more.
And as this country is battling the impacts of climate change,
from coastal flooding to wildfires, the protections from the
ESA are more critical than ever, and we have to remain
committed to preserving them.
Healthier wildlife populations lead to healthier
ecosystems, which result in stronger shorelines, less intense
wildfires, enhanced water quality, and fewer pests. Studies
show that 99 percent of species listed under the ESA have
avoided extinction. Let me repeat that: 99 percent. Yet today,
despite its successes, we continue to see attempts to strip it,
the ESA, of its provisions, making it harder to protect
wildlife.
Last Congress, Committee Republicans introduced CRAs to
delist imperiled species and proposed the ESA Amendments Act of
2024. This bill would delay new listings while fast-tracking
removals and narrowly re-define key terms to limit the ESA's
reach.
Currently, there are about 1,300 endangered or threatened
species in the United States, and I want to see these species
delisted. He was talking about the wolf, the gray wolf. We are
getting there. But the best proven path forward is to invest in
their recovery.
The Chairman likes to say, ``Build it and they will come,''
and I agree. That is why I remain committed to passing
legislation like the Recovery in America's Wildlife Act, or
RAWA. It has been a top priority, I know, for many of us, for
sportsmen, conservationists, hunters. RAWA will help promote
and enhance our Nation's conservation efforts by proactively
investing in State efforts to prevent at-risk wildlife from
becoming endangered in the first place. And I am hopeful I can
work with my colleagues in this Committee this year. We will
reintroduce the bipartisan legislation and get it done.
But in the meantime, Mr. Rohlf, it is important we continue
to strongly support the ESA to ensure species that are already
in decline, and that includes identifying vulnerable species
early. Mr. Rohlf, how is it that species get listed so late in
the process, making decisions increasingly difficult for
everyone involved?
Mr. Rohlf. Well, one of the problems, Representative
Dingell, and I certainly honor your family's legacy with the
Endangered Species Act, is that the agencies that are tasked
with making listing decisions for those species are oftentimes
well under-funded. So, there is a long list of species that the
agencies have determined warrant protection as threatened or
endangered, but their listing is precluded by higher-priority
species that the agencies are working on because of the
agencies' limited resources. And in fact, Congress amended the
statute to allow that sort of parking place for species that
deserve listing but the agencies simply don't have the
resources to list them in a timely fashion.
So better and more resources to the Fish and Wildlife
Service and National Marine Fisheries Service could allow them
to list species earlier, when recovering them is easier.
Mrs. Dingell. So in 35 seconds, how will proposed budget
cuts in workforce firings impact recovery prospects for
species?
Mr. Rohlf. What we are seeing going on, especially with a
loss of Federal expertise, is going to be devastating for not
only species recovery, but, as I noted, for those agencies'
ability to do the work they need to do to even allow permits
for other actions to go forward.
Mrs. Dingell. Thank you. I just hope that if we want to
delist species, we need to invest in the recovery.
I thank you, Madam Chair. I yield back.
Ms. Hageman. Thank you. The Chair now recognizes Mr. Crank
for 5 minutes.
Mr. Crank. Well, thank you, Madam Chair. I have learned a
lot about things today in the hearing. Especially, I didn't
know that Yosemite Park must be closed because there was one
guy who had a key, and now we can't get it open. Oh, wait.
Maybe there is somebody else who could open that.
Look, it is important to me that State and Federal partners
are responsible managers of species. And Colorado Parks and
Wildlife, my State management agency, has in the past done a
pretty good job of letting science guide its management. As an
example, the Colorado bighorn sheep has never been listed under
ESA due to the State's management efforts. And as an avid
hunter, I am proud to have directly contributed to the
conservation as I purchased tags for those bighorn sheep for 20
years for a chance to hunt a bighorn sheep. It is currently
mounted in my office, and I would love to have anyone come by
if you would like. Hunters play a critical role in species
management and preserving State and public lands, as portions
of hunting licenses often fund State conservation efforts.
Congress uses the term, by the way, ``best available
science'' several times in ESA and MMPA statutes to guide the
direction of Fish and Wildlife and NMFS in the conservation of
the species. To put a species under the ESA, Fish and Wildlife
must use the best available science and commercial data to
list, delist, or reclassify a species.
For the gray wolf, Fish and wildlife has made numerous
attempts to delist the species under both Republican and
Democrat administrations, as the population has exceeded its
recovery goals, but we haven't had success in that delisting.
Instead, Fish and Wildlife has had to face serial litigants
over every attempt, claiming they didn't use the best available
science when moving forward with decisions to delist the gray
wolf.
Yet, groups like the Alliance for the Wild Rockies,
WildEarth Guardians, and Center for Biological Diversity that
exploit the best science requirements in ESA turn around and
push for gray wolf reintroduction to be included on the
Colorado ballot in 2020. So the Center for Biological Diversity
profited over $1.8 million in Fiscal Year 2023 from lawsuits at
the Federal Government related to NEPA and ESA.
Madam Chair, I ask unanimous consent to insert this letter
to Governor Polis from September 2022, signed by the Alliance
for the Wild Rockies, WildEarth Guardians, and Center for
Biological Diversity and others to reintroduce wolves to
Colorado into the record.
Ms. Hageman. So ordered.
[The information follows:]
September 9, 2020
Governor Jared Polis
State of Colorado
200 E. Colfax Ave
Denver, Colorado 80203
Director Dan Gibbs
Colorado Department of Natural Resources
1313 Sherman St., #718
Denver, Colorado 80203
Dear Governor Polis and Director Gibbs:
On behalf of our members from Colorado and across the nation, the
undersigned conservation organizations endorse the reintroduction of
gray wolves to western Colorado. Reintroducing wolves would go far to
restore the natural balance to Colorado's Rocky Mountains for
generations to come. It would also complete the return of wolves across
the entire Rocky Mountain chain from Alaska to the U.S. Southwest, a
wildlife restoration success of global significance.
Gray wolves inhabited the southern Rocky Mountains of Colorado for
thousands of years until 1945, when the last one was killed in
southwestern Colorado. Wolves evolved alongside their prey such as deer
and elk. Their absence has altered both prey and landscapes. Bringing
wolves back will help restore this predator-prey balance, helping keep
both the prey and the landscapes they graze healthier.
Wolf reintroduction to Yellowstone National Park and the northern
Rockies in 1995-96 resulted in documented benefits to the fish,
wildlife, and plant communities of the region, including growth of
streamside vegetation that has benefited fish, amphibians, beaver, and
songbirds. Moreover, scavenging animals such as bears, eagles, and
wolverines have benefited from the leftovers of wolf kills.
Today, roughly 1,800 wolves live in the northern Rockies region of
Montana, Idaho, and Wyoming, alongside robust populations of deer, elk,
livestock, and of course people, including wolf-watching visitors from
all over the world. But those benefits have not accrued to Colorado
because the very few wolves that have migrated south from the northern
Rockies have not been numerous enough to establish a population.
Colorado requires wolf reintroduction for a viable population to
reoccupy the vast, highly suitable public wildlands of the western half
of the state.
Just as occurred in the northern Rocky Mountains, reintroducing
wolves to western Colorado would restore the natural balance to the
southern Rocky Mountains. Reintroduction would also provide an
inspiring example of Coloradans correcting a mistake of the past--the
extermination of wolves--through science-based restoration.
We strongly support the reintroduction of wolves to the public
lands of western Colorado. Returning the missing howl of the wolf to
the Colorado wild would greatly enhance the natural beauty and
ecological health of Colorado's Rocky Mountains.
Respectfully yours,
Erik Molvar Tehri Parker
Western Watersheds Project Rocky Mountain Wild
Mike Phillips Jonathan Proctor
Turner Endangered Species
Fund Defenders of Wildlife
Mike Garrity Shelley Coldiron
Alliance for the Wild
Rockies W.O.L.F. Sanctuary
David Jenkins Stephanie Jane Harris
Conservatives for
Responsible Stewardship Animal Legal Defense Fund
Kelly Burke Jennifer Thurston
Wild Arizona Information Network for
Responsible Mining
Craig C. Downer Peter McCollum
Wild Horse and Burro Fund Save Animals Facing Extinction
Dave Willis Mark Pearson
Soda Mountain Wilderness
Council San Juan Citizens Alliance
Amanda Dumenigo Shelley Silbert
Save Our St Vrain Valley Great Old Broads for Wilderness
Michael Stocker Lindsay Larris
Seven Circles Foundation WildEarth Guardians
Dan Silver Norman Bishop
Endangered Habitats League Wolf Recovery Foundation
Hailey Hawkins Kirk C. Robinson
Endangered Species
Coalition Western Wildlife Conservancy
Suzanne Roy Ariel Moger
American Wild Horse
Campaign Friends off the Earth U.S.
Michael Kellett Delia G. Malone
RESTORE: The North Woods Sierra Club, Colorado Chapter
Michael J. Robinson Rob Edward
Center for Biological
Diversity Rocky Mountain Wolf Action Fund
James Kleinert Michael Petersen
Horse Medicine Productions The Lands Council
Rick Meril Mary Harris
Coyotes, Wolves and Cougars
Forever Roaring Fork Audubon
Charlotte Roe Tim Whitehouse
Wild Equid League of
Colorado Public Employees for
Environmental Responsibility
Kimberly Baker Tom Sobal
Klamath Forest Alliance Quiet Use Coalition
Thomas Wheeler Christine Canaly
Environmental Protection
Information Center San Luis Valley Ecosystem Council
Lisa Robertson JoAnn Hackos
Wyoming Untrapped Evergreen Audubon
Melanie Hill Tracy Coppola
WILD Foundation National Parks Conservation
Association
Laura Leigh Wally Sykes
Wild Horse Education Northeast Oregon Ecosystems
Robert Hall Beth Allgood
Christian Council of
Delmarva International Fund for Animal
Welfare
Jonathan Way Kelly Nokes
Eastern Coyote Research Western Environmental Law Center
Courtney Vail Moana Bjur
Oceanic Preservation
Society Conservation Council for Hawaii
Nancy Warren Marc Cooke
National Wolfwatcher
Coalition Wolves of the Rockies
Joseph Butera Dan Ritzman
Northeast Ecological
Recovery Society Sierra Club
Michael J. Painter Darlene Kobobel
Californians for Western
Wilderness Colorado Wolf and Wildlife Center
Jonathan Carter Leesa Carter-Jones
Forest Ecology Network Captain Planet Foundation
Nedim Buyukmihci Camilla Fox
Unexpected Wildlife Refuge Project Coyote
Earl L. Hatley Adam McCurdy
LEAD Agency, Inc. Aspen Center for Environmental
Studies
Karen Tuddenham Richard Pritzlaff
Sheep Mountain Alliance Biophilia Foundation
Jason Christensen Noah Long
Yellowstone to Uintas
Connection Natural Resources Defense Council
Kim H. Crumbo Heidi McIntosh
The Rewilding Institute Earthjustice
Courtney Vail Jessica Plachta
Oceanic Preservation
Society Lynn Canal Conservation
Lois Barber
EarthAction
______
Mr. Crank. Rather than letting science and data guide the
reintroduction of the gray wolf in Colorado, these groups
pushed to mandate reintroduction and relied on ballot box
biology, leaving little flexibility in the reintroduction
program for Colorado Parks and Wildlife. Coloradans who didn't
want wolves in the first place now have to contend with them
living in their backyards because people in Denver and along
the Front Range voted to put wolves in someone else's backyard
on the Western Slope. It is clear that environmental groups use
the ESA as a weapon against project development to stifle
innovation and to cherry-pick science to adhere to their
feelings about species management.
Mr. Moore, we have continually seen serial litigants
exploit the term ``best available science'' in the ESA by
selectively choosing different factors, sometimes even
administrative factors, to justify litigation on species such
as the gray wolf. Do you see in your work instances of how this
impacts agency decision-making to the detriment of species
recovery?
Mr. Moore. Without question. The tactics that are used
frequently by the environmental groups, particularly the
wildlife environmental groups, are an absolute detriment to
species recovery and the implementation of both the Marine
Mammal Protection Act and the Endangered Species Act.
One of the tactics that is in addition to the parade of
sue-and-settle lawsuits that they use to fund their war chest
more recently has been to insert themselves into the Section 7
consultation process. That is a process that is not designed,
does not contemplate, and does not authorize the participation
by anyone except for the Federal agency and the applicant for
the permit that is being sought.
They have done an end-round around that process, however,
by using public dockets such as the FERC docket to dump tens of
thousands or more pages of immaterial science on the agencies
at the eleventh hour before the agency is getting ready to make
a decision, and then claim that the decision that the agency
made was not based on the best available science that they
injected into the record, use that to sue, get the attorney's
fees when they win, and then use those fees to sue again.
So absolutely, it is a process that is broken. It was never
intended to function that way, and it is something that needs
to be fixed.
Mr. Crank. Thank you, Mr. Moore.
Ms. Hageman. Thank you. The Chair now recognizes Mr. Min
for 5 minutes of questioning.
Mr. Min. Thank you, Chair. Thank you, Chair Hageman, and
also to Ranking Member Hoyle. I appreciate today's hearing.
I want to first recognize and thank Mr. Paul Weiland for
traveling all the way to D.C. Mr. Weiland is a constituent of
mine.
And I appreciate that you brought some good California
weather out here. It is very nice and warm outside.
My district is in the heart of Orange County. I am sure
Paul could tell you all it is home to a lot of beautiful,
outdoor spaces that are habitats for a lot of endangered and
rare species. And instead of talking about solutions to address
the biodiversity crisis that we are clearly facing, we have
been hearing today a lot of mischaracterizations and half
truths about foundational environmental protections that have
served for decades as the last line of defense for many of our
species.
Now, some folks want us to believe that in the aftermath of
the Supreme Court's Loper Bright ruling, which ended Chevron
deference, that laws like the Endangered Species Act must be
radically cut back in the name of executive overreach. Now, I
will point out that there is a lot of executive overreach
happening right now that is not being addressed, including
direct incursions on our congressional powers to legislate and
to appropriate.
But I want to go back to the Endangered Species Act,
because this follows a long pattern of attack that predated the
Loper Bright decision, and goes back many years. Last Congress
alone, at least 115 bills and amendments were introduced to
undermine the ESA.
In the absence of Chevron deference, of course, agencies
are constrained in their ability to interpret ambiguity in our
laws, requiring them to adhere to the plain meaning of the text
unless Congress specifically states otherwise. But there are
few laws that are as clear that are on the books as the
Endangered Species Act and the Marine Mammal Protection Act.
Their mandates to prevent extinction and promote species
recovery are reinforced in every section of their text.
My first question is a yes-or-no question. Mr. Vecchione, I
will ask this one to you. Do you believe that Federal agencies
like Fish and Wildlife Service should honor the plain meaning
of our laws?
Mr. Vecchione. Yes.
Mr. Min. And do you agree that, when there is an ambiguity
in the law, the interpretation of the courts must be followed?
Mr. Vecchione. Yes.
Mr. Min. So over 40 years ago, in Tennessee Valley
Authority v. Hill, the Supreme Court stated that the plain
intent of Congress in enacting the Endangered Species Act was
to halt and reverse the trend toward species extinction,
whatever the cost, and that the benefits for doing so were
incalculable.
Now, Professor Rohlf, you have read through many of the
Republican ESA proposals over the years. Does adding ambiguity
and exceptions to the ESA, as many are proposing, improve
species outcomes? Does it help fulfill its mandate as
reaffirmed by the Supreme Court?
Mr. Rohlf. No, absolutely not. Most of the proposals to
amend the Endangered Species Act that I have seen over the
years would weaken the statute considerably, and make it much
more difficult to attack the biodiversity crisis.
Mr. Min. How about if we try to undo decades worth of
environmental review regulations and remove guidance on the
National Environmental Policy Act, as this Administration has
done? Is that something you see as helping or hurting with the
ambiguity?
Mr. Rohlf. It is doing tremendous damage to our efforts to
not only protect the endangered species, but also to make sure
that protections for endangered species are compatible with
what people need, as well.
Mr. Min. Yes.
Mr. Rohlf. I mean, that is an important part of both NEPA
and the Endangered Species Act.
Mr. Min. Yes.
Mr. Rohlf. And to weaken the Act, to deprive Federal
agencies of resources to implement it----
Mr. Min. Well, I know you----
Mr. Rohlf [continuing]. Just makes it harder.
Mr. Min. And reclaiming my time, just to follow up on that,
what about the Trump-Musk cuts, as you referred to, to
workforce at Fish and Wildlife Services? Does dismantling
agencies charged with enforcing these laws help the government
fulfill the plain meaning of the ESA?
Mr. Rohlf. It is absolutely devastating.
Mr. Min. Yes. And I will just note that the community I
represent, as Mr. Weiland knows, where do you live, exactly?
Remind me, Mr. Weiland.
Mr. Weiland. Right off the 133.
Mr. Min. Oh, fantastic. You are a little bit north. Do you
enjoy outdoor activities? Fishing, hiking, biking, any of that?
Surfing?
Mr. Weiland. I do enjoy our environment.
Mr. Min. Yes, we have quite a lot of beautiful outdoor
spaces. Mountains, hills, lots of walking trails, beautiful
coastline. But unfortunately, we are also subject and on the
front lines of a lot of the climate change that we are seeing.
And whether it is our shoreline that is eroding every year,
whether it is the extreme temperatures, the drought that we are
facing, we are facing a lot of threats to our ecosystems right
now, and that is one of the reasons that the first piece of
legislation that I introduced as a Member of Congress was the
Aquatic Biodiversity Preservation Act, which would provide new
tools to sequence the genetic information of at-risk species in
our oceans and waters, and to ensure that this data is
available for researchers, conservation planners, and the
general public so that we can try to get a handle on what is
happening with extinction, and the loss of biodiversity
happening in our coastline.
Rising ocean acidification, rising temperatures have really
threatened these fragile marine ecosystems, and that is
something that I know a lot of my constituents care deeply
about. It is one reason why we have been so aggressive, I have
been so aggressive in my career in trying to preserve that
scarce biodiversity. And I worry about the effects of this
approach that is being discussed today.
But with that I yield back.
Ms. Hageman. Thank you. The Chair now recognizes Ms. Maloy
for 5 minutes of questioning.
Ms. Maloy. Thank you, Madam Chair.
Thank you all for being here today. You are actually a
really great panel.
And I just want to point out that I have some real-world
experience with dealing with ESA regulation and policy. I have
Utah prairie dogs, Mojave Desert tortoises, various fish
species in my district, and I have also been involved in the
State's efforts to avoid the listing of sage grouse and gray
wolves in Utah. I worked as an attorney on renewing an
incidental take permit for one of those species, and I know
firsthand how difficult it is to satisfy the ESA requirements
in light of the regulations that have been enacted since 1973.
So I appreciate a lot of what has been said here today.
But Mr. Vecchione, I hope I am saying your name right.
Mr. Vecchione. That is fine.
Ms. Maloy. I was really struck by something you said about
one of the factors that impacted the court's decision in the
Loper Bright case was a resistance to regulation changing when
the statute doesn't change. And I think that is the crux of
this whole issue. We are going back and forth on some partisan
issues, but I want to echo what Chair Hageman said about we
need to do a better job of being really clear, as Congress,
about what it is we are asking agencies to do.
We also need to be more robust in our oversight of those
agencies. What we have done is neglect the agencies, and then
policies swing back and forth every time we have a presidential
election.
And there are a lot of things I would love to talk to you
about, but I only have 5 minutes. And since the Chair did such
a great job of talking about that, I just want to say I echo
what she says and yield the rest of my time to Chair Hageman.
Thank you.
Ms. Hageman. Thank you, Ms. Maloy.
And Mr. Vecchione, I am going to focus on you again,
because I do think it is important.
We have talked a lot about the Endangered Species Act
today, but we also need to focus back on the Loper Bright
decision in reversing the Chevron decision. And what I would
like to ask with you, as a practitioner, with all of the
various cases that you have handled over the years with
agencies that really have gone rogue in many ways, they are not
implementing the law as it was written by Congress but they are
implementing the law as they have interpreted it or
reinterpreted it either through regulations, guidance
documents, issuing answers to frequently asked questions, all
of the various ways in which agencies have amassed more and
more and more power since the APA was adopted in the late
1940s, could you just provide us with some of the ideas that
you have that would help Congress to do better in terms of
actual lawmaking so that we can minimize either judicial or
agency interpretation of what it is that we are putting down on
paper?
Because, again, under Article I, we are the ones that
should be writing the law. We should be able to do that well.
And I would love to hear what your advice might be in that
regard.
Mr. Vecchione. Well, there are a couple of things.
First of all, we still have to defer to all the agencies on
whatever they say about the science. The courts defer to that
unless it is way out there. OK? If it is arbitrary and
capricious what they did, or if they didn't take into account
some last-minute data that was put in under the APA, you can
get those knocked out. But the judges will still defer on the
facts.
And there is no Daubert. If I want to put in a testimony
from an expert, I have to show he is an expert and he used
proper methodology. The agencies don't have to do that.
And in this case something struck me. I have never looked
at it before. I looked at the right whale proposal, and that is
where I argued Relentless, right in Boston where it starts. And
they said there are about 500 of these whales left, there are
100 female whales, but because of the nature of the Atlantic
they can't know where they are.
I find it incredible, the amount of money that is spent by
slowing this down. Do you know why they are called right
whales? They are called right whales because when they hunted
the whales into extinction, they loved them because when they
are killed they float so you could go out on Nantucket and get
them, and they were very easy to process. So, it strikes me as
odd that they have never asked for the money to tag these
whales so that they are actually navigational obstacles to all
the ships. How much would that cost?
We had to believe the science in their proposal. That
strikes me, as a sailor and a guy who is up there and has been
in these whale places, because I am a whale guy, that they
can't find those whales and tag almost all of them with an
electronic beeper so that all these boats would know where they
were. So that is one thing, how the science is done.
The other thing is when you have oversight, you should be
asking them why they are doing this, why aren't they delisting,
or why are they listing, or that question, how many of these do
we need, right? The gray wolf, it is the most successful
predator in the world. It is found on every continent but
Antarctica. If you don't kill them and trap them and poison
them, they are going to come back.
Ms. Hageman. That is right. That is exactly right.
I appreciate the advice that you have provided, and I think
that we need to look into better defining what is meant by the
best available science and what the agencies need to produce to
actually support and defend the decisions that they are making.
Because, like you, I have to bring in my own expert witnesses,
and I am required to meet a certain burden of proof. But in the
regulatory or guidance context, especially, agencies are not.
And I think that that is where we need help with revising the
APA to force that issue when they are doing rulemaking.
Thank you, and with that, I call on Mr. Gray for his 5
minutes of questioning.
Mr. Gray. I would like to thank the Chair and the Ranking
Member for holding this hearing today, and certainly thank you
to the witnesses for being here.
I represent a district in California, part of the largest
agricultural valley in the world, and a place I am proud to be
from and have participated in that very ag economy. But it is a
common conversation back home as we seek to balance both the
need to protect the environment and be good stewards of the
land and at the same time protect the industry that is
critically important to our valley and to this country.
And in California, as you can imagine, these issues get
pretty polarizing. And folks oftentimes seem to put themselves
in one camp or another. I am either pro-wildlife or pro-water
access, right? And the reality is both of these things are
critically important, and we should be striving to ensure that
our farmers have access to the water they need while also
protecting the delicate ecosystems that are influenced by these
systems. I have certainly seen firsthand how people struggle
when this balance turns into a zero sum game and people stop
listening to each other. We really do need to find that
balance, and it is certainly something I am committed to during
my time here in Congress.
Mr. Moore, President Barack Obama observed that it makes
little sense to have two different departments, Interior and
Commerce, regulating the same species of fish depending on
whether that species was in the ocean or was in inland waters.
And there are circumstances, like the Klamath Project, where
biological opinions issued by the Fish and Wildlife Service are
inconsistent with biological opinions issued by the National
Marine Fisheries Service. Do you think the goals of the
Endangered Species Act could be better served by consolidating
authority to implement the Act in one department, the
Department of the Interior?
Mr. Moore. Was that to Mr. Rohlf or to me?
Mr. Gray. Mr. Moore.
Mr. Moore. OK, yes. I mean, I think that there is sense to
unifying the expertise among the Federal agency and the science
and those who know best. But at the same time, there are
separate processes between what the National Marine Fisheries
Service handles and what the Fish and Wildlife Service handles.
And the jurisdictional scopes of both of those agencies at this
point appear to be working rather well. What is not working
well is the way that they individually implement the statutes
or the species under their charge.
At the same----
Mr. Gray. Thank you. Thank you, I appreciate that.
Mr. Weiland, thank you for your testimony today. As you
likely know, another place where implementation of the ESA has
been a challenge is during FERC licensing and relicensing of
hydropower facilities. Hydropower currently makes up about 40
percent of the Nation's overall renewable electricity,
certainly an essential resource and quite a bit in my district.
However, in the next 10 years alone, FERC licenses for nearly
300 hydropower projects comprising over 11 gigawatts of
authorized capacity and over 25 percent of the entire fleet of
non-Federal hydropower capacity will expire.
While this Subcommittee isn't involved with the Federal
Power Act, it does have jurisdiction on the Fish and Wildlife
Service and the NMFS, which are both mandatory conditioning
agencies that frequently contribute to the length and cost of
the FERC process.
I continue back home to hear about hydropower projects
being held hostage by Federal agencies, imposing onerous fish
passage and species protections, requirements that make
hydropower owners and their electric customers address issues
way beyond the actual effects of the project, with little
recourse to challenge. Do you have any experience in projects
that have run into these issues?
And what steps can we take to ensure that the
implementation of the ESA doesn't end up killing critical
hydropower resources or drive up costs for consumers?
Mr. Weiland. Yes, thanks for the question. I do have
experience working, particularly with National Marine Fisheries
Service, on FERC relicensing and even on non-FERC projects that
have to go through Section 7 consultation and that involve dams
and dam operations.
And one of the challenges is the issue that the Chair and I
discussed briefly earlier, which is how NMFS approaches the
consultation itself, whether NMFS goes into it with a mindset
of looking at the entirety of the operations as discretionary,
and therefore subject to consultation so it can revisit how the
dam is operated, whether it is operated, whether it needs to
fulfill some passage requirements, whether it is trap and haul,
or even a volitional fish passage like a fish ladder system and
whether those are feasible.
And one of the challenges, frankly, with National Marine
Fisheries Service is that there are dams all up and down the
West Coast, and the National Marine Fisheries Service sees
those as an obstacle to the historical populations of fish,
which it is, but that doesn't mean it is an obstacle to those
fish having viable populations, which is another issue. And I
think that will be an ongoing issue, and is an issue that many
agencies on the West Coast face currently.
Mr. Gray. Well, it is certainly a big problem----
Ms. Hageman. Thank you.
Mr. Gray [continuing]. From a holistic approach.
Thank you, Madam Chair.
Ms. Hageman. Thank you.
Mr. Gray. I yield my time.
Ms. Hageman. The Chair now recognizes Ms. Hoyle for a
request.
Ms. Hoyle. Madam Chair, I ask unanimous consent that
Representative Don Beyer of Virginia have permission to sit on
the dais and participate in today's hearing.
Ms. Hageman. So ordered. And the Chair now recognizes Mr.
Beyer for his 5 minutes of questioning.
Mr. Beyer. Madam Chair, thank you very much.
Professor Rohlf, I have just come in but I have heard lots
of different things have happened in this meeting. I wonder,
before I ask a few questions, if you have anything you would
like to add.
Mr. Rohlf. Sure. I just want to reemphasize a couple of
points.
First of all, protecting and recovering species, protecting
their habitats, protects humans, as well. We depend on the
natural world, just like imperiled species does or do.
The Endangered Species Act and its regulations actually
build considerations of species and recovery predictably into
everyday decisions of Federal agencies. Everybody has gotten
used to that. And it has been really interesting to hear how,
supposedly, when new administrations take over, regulations
dramatically change. Well, the Endangered Species Act actually
provides a good example. The regulations implementing Section 7
of the Endangered Species Act remained unchanged from 1986 to
2019, the dramatic changes in 2019 by the Trump administration.
Looking at those regulations, which I did pretty extensively,
most of those regulations would probably not survive judicial
review under the Loper Bright standard, because they simply
weren't consistent with a best reading of the Endangered
Species Act.
So if we want to maintain that predictability, building in
species recovery to everyday actions in a reasonable way, we
should maintain those consistent regulations and not wildly
adopt new regulations that don't make any sense under the terms
of the statute as the first Trump administration did.
Mr. Beyer. Thank you very much. Professor Rohlf, you and I
are both well aware that the Endangered Species Act is why we
were able to stop the extinction of gray wolves in North
America. Right now gray wolves are under State management in
the northern Rockies, and Wyoming has a shoot-on-sight policy
pretty much anywhere outside of Yellowstone. In 85 percent of
Wyoming there are no requirements when killing a wolf. No
hunting license, no bag limits, nothing that is typical of
well-managed hunting. Wolves can't make it out of Yellowstone
without being shot. Professor Rohlf, what does Wyoming's shoot-
on-sight policy for gray wolves mean for the recovery of the
species?
Mr. Rohlf. It obviously makes it more difficult. However,
Congress legislatively delisted wolves in the northern Rockies,
which allows for Wyoming to have that shoot-on-sight policy. It
doesn't make any sense from, as you said, a sporting
standpoint. It also doesn't make any sense from the standpoint
of managing an ecosystem. So, continued protection of wolves
until they have recovered throughout all or a significant
portion of its range outside of that legislatively delisted
portion is obviously still important.
Mr. Beyer. Thank you.
I had the pleasure of working with the late American
biologist E.O. Wilson in his last years, and he deeply believed
that all life depends on essential ecosystems, and that
damaging or erasing these ecosystems will have a profound
impact on biodiversity and human health and well-being. Our
Earth is currently facing a biodiversity crisis in species
extinction. As you know, between 1970 and 2018, there has been
an average 69 percent decrease in population sizes of mammals,
birds, amphibians, fish, and reptiles. Professor Rohlf, can you
elaborate more on how important a well-funded and well-enforced
ESA is critical to reversing the course of damage to our
biodiversity?
Mr. Rohlf. Well, of course, Congress recognized the
incalculable value of biodiversity and species to humans. That
issue came up in looking at the constitutionality of the
Endangered Species Act. And one of the judges pointed to that
value of biodiversity in saying that that affects interstate
commerce, and that Congress has the authority and the
obligation to the public to protect imperiled species.
To give you a good example, Gila monsters in the American
Southwest are declining. They have been the subject of listing
petitions. We should apply more resources to that species so
they never need to be listed. It is one of the few venomous
lizards. The venom of Gila monsters, important to developing
drugs like Ozempic, which helps fight diabetes and is one of
the most valuable drugs in the world right now to fight
obesity. And without out those biodiversity, those genetic
resources, we simply would not discover those sorts of valuable
and lifesaving drugs.
Mr. Beyer. Professor, thank you for bringing that up. I
would just like to point out that Mitch Daniels, the former
Republican director of the OMB, pointed out that more than 30
percent of our Medicare budget is just type 2 dialysis, end-
stage renal disease. So the Gila monster is going to save us an
awful lot of money on Medicare.
With that, Madam Chair, thank you for letting me waive on,
and I yield back.
Ms. Hageman. Well, and thank you. And I do want to assure
you that the Canadian gray wolf population in Wyoming is
thriving, doing very, very well, despite the fact that they
have been delisted.
The Chair now calls on Mr. Ezell for 5 minutes of
questioning.
Mr. Ezell. Thank you, Madam Chair.
Today's hearing is about accountability, and I want to
thank all the witnesses for being here today and sharing so
much information. The Marine Mammal Protection Act and the
Endangered Species Act were created with good intentions to
protect species and ensure their survival. But over time these
laws have been twisted into tools of overreach, allowing
Federal agencies to impose sweeping restrictions.
The Supreme Court reaffirmed that it is Congress, not
unelected bureaucrats, who decide the scope of these laws, yet
we continue to see agency actions that go far beyond what
Congress ever intended. Take the case of the Rice's whales in
the Gulf of America. Policies like these threaten entire
industries and livelihoods from shipping, fishing, recreation,
and national security. We must ensure conservation efforts are
balanced with economic and practical realities.
Mr. Weiland, I appreciated your testimony on NOAA's
reliance on the precautionary principle. We have seen this play
out on the Atlantic Coast with the North Atlantic right whale
Vessel Speed Rule, which you rightfully called an observed
outcome. And in the Gulf of America, with Rice's whales, both
proposals would have crippled economies. I support
conservation, but it must be grounded in sound science and
common sense. This proposal has neither and, in my view,
represents the gross overreach of agency authority. Do you
believe Congress intended for NOAA to have the power to
effectively shut down ocean industries like we saw attempted
with the Rice's whales proposal?
Mr. Weiland. No, I do not. I believe that when Congress
enacted both the ESA and the MMPA, as I testified earlier, that
there was a belief that species conservation could occur
consistent with economic activity.
And I think what we see is a consequence of the lack of
reauthorization to revisit and update the laws. And
reauthorization shouldn't mean all or nothing. Either gutting
the laws or making them more and more difficult to get through.
We should be able to find a way to have common-sense
reauthorization.
Mr. Ezell. Thank you. What changes could Congress make that
might bring more balance to the law while still fulfilling its
conservation mission?
Mr. Weiland. There are a number of changes Mr. Moore
actually pointed out, too, in his testimony, which he has
provided specifically. But there are more that I could talk
about than I have time for.
I will say one, for example, is just decoupling the
Endangered Species Act and the Marine Mammal Protection Act. So
right now, before you can get an incidental take statement
under Section 7, you need your Marine Mammal Protection Act
approval. And there is no reason that it has to be contingent
on that. And that is just one very simple step, but there are
many others that could be taken.
Mr. Ezell. Thank you.
Mr. Vecchione, one of the biggest frustrations I hear from
my constituents, whether they are shrimpers, farmers, or energy
producers, is that they spend years and, in some cases,
millions of dollars trying to comply with agency regulations,
only for the rules to keep changing based on lawsuits from
radical environmental groups. To what extent do you believe
litigation is driving regulatory instability under the ESA and
the MMPA?
Mr. Vecchione. Is that directed to me? I think I have cited
some of the cases. Sometimes they win, sometimes they lose. But
it is the fact that you can have a friend inside of the agency
and then sue along with that to either help or hurt it is
somewhat of a problem, it strikes me.
Mr. Ezell. Thank you, and thank you all for being here
today.
Madam Chairman, I yield back.
Ms. Hageman. Thank you. The Chair now recognizes Ms. Hoyle
for her 5 minutes of questioning.
Ms. Hoyle. Thank you.
Mr. Rohlf, I just wondered, as we finish up this hearing,
if you have some final comments on what we have talked about
today.
Mr. Rohlf. Yes, thank you very much, Representative Hoyle.
I appreciate everyone's concerns to uphold the policy
behind the Endangered Species Act, which is to prevent
extinction, and to facilitate the recovery of listed species,
and also to prevent species from becoming threatened or
endangered. I think we can all agree on those things.
How do we do that? How do we best do that? And is the ESA
equipped to do that? Let me start with the second one.
I think the ESA is unequivocally equipped to do all of
those things. Many States, property owners, and the Federal
Government have worked together to try to prevent species from
becoming threatened or endangered. The prospect of listing has
fostered a lot of cooperation and innovation, and in some cases
that has protected species before they need to be listed. That
is working with the States, that is using State authority. And
we should encourage and even fund those sorts of actions.
When species are imperiled, when the best available
science, which should continue to drive decisions under the
Endangered Species Act, indicates that species are in danger of
extinction, then we should continue to adopt what Congress very
clearly said was the ``institutionalization of caution.''
And my colleagues here have talked about the precautionary
principle as if it is some sort of terrible thing that over-
regulates everything and we should avoid. Well, actually,
Congress was very clear in the Endangered Species Act that
Section 7 and the prohibition against Federal agencies from
taking actions that jeopardized listed species. Congress said
when it enacted the Endangered Species Act, that that is the
institutionalization of caution. And I would submit that that
is a very wise idea, that we should institutionalize this sort
of consultation process, basically building into permitting
considering up front the needs of threatened and endangered
species in making Federal decisions in permitting other actions
to go forward such as oil and gas exploration in the Gulf or
vessels navigating along the East Coast.
If we do that with adequate resources, using the best
available science, in almost all cases we have been able to
find ways of doing business that don't jeopardize the existence
of threatened and endangered species, that minimize impacts to
marine mammals, and still allow economic activities to go
forward. Does that impose some economic cost? Yes, it may
indeed. But we live with resources that we need, and we need to
protect those resources that require some degree of investment.
So none of that should come as a surprise. But on balance,
protecting a functional environment protects us.
Finally, everybody talks about, oh, the courts are running
this or running that. The courts really are not running
anything. The courts evaluate the decisions of Federal agencies
in implementing the Endangered Species Act and Marine Mammal
Protection Act. Sometimes economic interests challenge those
decisions by regulators and they win. Sometimes environmental
plaintiffs challenge decisions of regulators and they win. But
all of those challenges and decisions by courts are based on
the law itself, and the clear regulations under that statute,
and an assessment of whether or not Federal agencies use the
best available science.
So courts aren't running anything. Congress is running it.
The Endangered Species Act and it is clear regulations are
running what happens. So, I think, if we look over the last 50
years, the Endangered Species Act has been a resounding
success, and I look forward to more decades of that success.
Ms. Hageman. Thank you. The Chair now recognizes Ms.
Boebert from Colorado for 5 minutes of questioning.
Thank you for being here.
Ms. Boebert. Yes. Thank you so much, Madam Chair. We like
to brag on some of the ESA resounding successes all the time
here in this Committee. For instance, the gray wolf that is
fully and completely recovered and should be federally delisted
from the Endangered Species Act. So that is truly a success
story that should be championed by both sides of the aisle
here. But as we have seen, the ESA has been exploited by the
Federal Government and radical environmental organizations to
stifle development and hinder species recovery.
With the help of the Trump administration, both in his
first term and now here, I am looking forward to even more
help. We are working to ensure that the Federal agencies are
held accountable for their regulatory overreach and reform so
that these statutes are implemented as Congress intended.
Unfortunately, Congress has not followed these success stories
of the ESA enough, and so there has been some actions taken in
the Administration.
Mr. Moore, do you know the cost of the delays to natural
gas projects the implementation of the ESA has passed on to the
American people over 30 years?
Mr. Moore. Across the industry I don't. I do on a project
by project basis for those that I have worked on.
Just giving you----
Ms. Boebert. I am happy to hear some numbers you know.
Mr. Moore. I am sorry?
Ms. Boebert. I am happy to hear some numbers you know.
Mr. Moore. Yes. I mean, to give you one example for a
project that I worked on the Mid-Atlantic for an oil and gas
pipeline project, there was, as a result of numerous challenges
to the Section 7 consultation, it resulted in the project going
from $3.5 billion to just over $7 billion.
Ms. Boebert. Wow.
Mr. Moore. One project.
Ms. Boebert. Wow. That is incredible. And I have here the
Endangered Species Act has caused, obviously, numerous delays
to natural gas projects in the U.S., and that we have an
estimated cost to the economy of $261 to $979 million over the
past 30 years. So, your one project certainly has a much more
detail than that.
Mr. Moore, how do you believe that President Trump's
emergency energy declaration would reduce costly delays like
this?
Mr. Moore. I think that any streamlining measure is going
to certainly make the process run more smoothly. Anything that
will lift the unnecessary delays that are faced is going to not
only make the process run better and how it was intended to
run, but it also will free up the resources of the agencies.
As it is right now, they are facing a constant barrage of
lawsuits from project opponents that really hamstring them, and
they are not in a position to be able to do the work that they
were tasked with doing by Congress. That causes them to then
have to reallocate the resources to other projects. So anything
that streamlines the process and makes it run in an efficient
manner is going to have benefits across not only the regulated
community, but also within the government.
Ms. Boebert. Yes, thank you. Streamlining does certainly
save money and makes things more efficient.
Mr. Vecchione, is that----
Mr. Vecchione. That is fine.
Ms. Boebert. OK. Would you agree that the purpose of the
ESA to remove species from the list of endangered and
threatened species once the species has recovered is the right
path to take?
Mr. Vecchione. Yes.
Ms. Boebert. Yes, so I think especially impacting our
farmers and ranchers in my home State of Colorado with the
judicial fiat that has resulted in the gray wolf continuing to
be delisted, the science is crystal clear on this, the gray
wolf should no longer be on the list. It is completely
recovered. At over 6,000 wolves at the time of the first
delisting, the gray wolf has been the latest Endangered Species
Act success story that we have been focused on here.
Now, how have State and tribal management plans helped to
bring back species like the gray wolf to be fully recovered?
And how does keeping them on the list disenfranchise these
partnerships?
Mr. Vecchione. I don't know.
Ms. Boebert. OK, great. Well, I think that working with our
tribal lands certainly does help with this partnership and they
are even willing to enact their Brunot treaty to prevent the
gray wolves from being introduced onto their sovereign land.
So thank you for our witnesses who are here today, and have
a great day.
Ms. Hageman. Thank you.
I ask for unanimous consent to enter into the hearing
record four letters received by the Committee: a letter from
the EnerGeo Alliance, which highlights challenges with the
implementation of the MMPA and ESA, and how reforms could
provide greater certainty to the American energy sector; a
letter from the California Sea Urchin Commission; a letter from
the California Pelagic Fisheries Association; and a letter from
the Mystic Aquarium in Connecticut.
Without objection, so ordered.
[The information follows:]
EnerGeo Alliance
Houston, Texas
February 26, 2025
Hon. Harriet Hageman, Chairman
House Natural Resources Committee
Subcommittee on Water, Wildlife and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Re: Oversight Hearing, ``Evaluating the Implementation of the Marine
Mammal Protection Act and the Endangered Species Act''
Dear Chair Hageman:
EnerGeo Alliance applauds your efforts to provide oversight on the
Marine Mammal Protection Act (MMPA) and Endangered Species Act (ESA),
early in the 119th Congress. It is imperative that the legislative
branch provide oversight and consider modernizing legislation on a
regular interval, unfortunately, for both the MMPA and ESA this has not
been the case. We urge careful review of these outdated statutes and
swift adoption of provisions to modernize the laws.
Founded in 1971, 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.
When it was enacted in the early 1970s (and subsequently amended),
the congressional intent behind the MMPA was forward-thinking and
appropriate for the time and identified problems. However, decades of
regulation and litigation have exposed some significant flaws in the
MMPA. Fixing these flaws would increase regulatory efficiency, decrease
uncertainty and federal government costs, and ultimately benefit all
stakeholders and the implementing agencies.
The primary flaws stem from poorly written statutory language that
creates (1) ambiguity and uncertainty in the application of the MMPA's
legal standards, and (2) procedural inefficiency. Fixing some of the
most obvious flaws in the MMPA could result in tangible regulatory
benefits. Our letter addresses some of the key problematic areas and we
look forward to working with you to ameliorate those issues.
Geoscience surveying has been and continues to be essential to
achieving the Outer Continental Shelf Lands Act's (OCSLA's)
requirements because it is the only feasible technology available to
accurately image the subsurface of the OCS before a single well is
drilled or a single energy source is developed.
Offshore geoscience surveys require authorizations from the Bureau
of Ocean Energy Management (BOEM), pursuant to OCSLA. See id.
Sec. 1340. There is no requirement for an applicant for an offshore
survey permit under OCSLA to obtain an incidental take authorization
under the MMPA. However, unlawful ``takes'' of marine mammals
incidental to lawful activities (such as a permitted offshore seismic
survey) may nevertheless be subject to MMPA-based penalties. See 16
U.S.C. Sec. 1375. Accordingly, many applicants for offshore survey
permits from BOEM also request incidental (i.e., unintentional) take
authorization under the MMPA from the National Marine Fisheries Service
(NMFS) and/or the U.S. Fish and Wildlife Service (FWS).\1\
---------------------------------------------------------------------------
\1\ FWS has jurisdiction over polar bears, walrus, sea otters,
dugongs, and manatees. NMFS has jurisdiction over all other marine
mammals.
---------------------------------------------------------------------------
In this context, it is important to recognize that the permit
issued by BOEM authorizes the seismic survey and the MMPA authorization
narrowly addresses the incidental take associated with the seismic
survey. NMFS and FWS do not have jurisdiction over the survey; their
authority under the MMPA extends only to the authorization of
incidental take. Notwithstanding the limited role of FWS and NMFS, MMPA
authorizations are often the primary cause of administrative delay in
the offshore geoscience survey permitting process.
In the past decade, these problems have manifested in routinely
delayed permitting processes, inconsistent and misguided analyses of
potential impacts, and opportunistic advocacy litigation intended to
block or impede offshore development.
For example, in the Gulf of America, BOEM requires an MMPA
authorization from NMFS prior to the issuance of a geoscience permit
under the current Incidental Take Regulation (ITR). During the
rulemaking process, industry pointed out mathematical errors in the ITR
that was originally promulgated January 2021. As discussed further
below, it took BOEM and NMFS an additional three years to re-evaluate
the original analysis before NMFS amended the ITR in 2024, ultimately
making few changes. This revision process was just one of many delays
in the history of the Gulf ITR that contributed to the steady decline
of geoscience surveys mapping the Gulf of America since at least 2014.
In Alaska, unnecessary and unexplained delays in processing MMPA
authorizations prevent planned geoscience surveys from providing the
timely insight that would update resource estimates. Currently, at
least one petition for MMPA authorization has stalled for more than two
years preventing updated insight into the resource potential on
Alaska's North Slope.
In the Atlantic, approximately 40 years have passed since the
potential hydrocarbon resource base has been assessed with seismic
surveys. In the meantime, seismic surveys for ``scientific research''
have been conducted fairly regularly in the Atlantic OCS, in addition
to other geophysical surveys used to characterize the seabed and
subsurface for suitability of offshore wind energy facilities. Six
companies applied to BOEM for permits to conduct seismic surveying in
the Atlantic OCS--a process that started in 2011, when the first permit
application was filed, and ultimately ended in 2018 after nearly six
years of working to obtain MMPA authorizations from NMFS.
Problematic MMPA provisions that provide negligible added
protection for marine mammals:
To issue an incidental take authorization under Section
101(a)(5) of the MMPA, the agency must show that the
authorization will have no more than a negligible impact on
marine mammal populations and result in only small numbers
of incidentally taken animals. ``Negligible impact'' is not
clearly defined; (2) ``small numbers'' is not defined at
all; and (3) there is significant overlap between these two
ambiguous standards. These problems have led to regulatory
uncertainty, inconsistent application by agencies, and much
litigation.
To issue an incidental take authorization, the agency must
require ``other means of effecting the least practicable
impact.'' These ``other means'' typically take the form of
mitigation measures included as conditions of the
authorization. ``Least practicable impact'' is not defined
in the statute or in the implementing regulations. As a
result, it is not consistently applied by agencies, there
is very little guidance for the regulated community, and,
most recently, the phrase has been unreasonably interpreted
by the Ninth Circuit Court of Appeals.
The MMPA permits the authorization of incidental take by
harassment. The definition of ``harassment'' is overly
broad and ambiguous, and confusingly refers to
``potential'' harassment rather than actual harassment.
This results in serious problems in the estimation of
incidental take and unrealistic assumptions made by the
implementing agencies.
The process for issuing incidental take authorizations is
routinely delayed by the implementing agencies. The current
procedural requirements create little accountability for
agencies because they are either ambiguous or establish no
consequences or solutions for unreasonably delayed agency
action.
The MMPA creates a 5-year limit on ``incidental take
regulations'' that requires applicants to petition for a
new set of regulations every 5 years. This results in
unnecessary and burdensome administrative processes that
create frequent opportunities for litigation.
Issues involving the overlap of the MMPA, the Endangered
Species Act (ESA), and the National Environmental Policy
Act (NEPA) have proven difficult for the agencies, the
courts, and the regulated community. Because the MMPA sets
the most rigorous conservation-oriented standards of all
these statutes, additional reviews and administrative
processes under the ESA and NEPA are often unnecessary and
redundant.
The energy geoscience industry is in the business of minimizing the
footprint of energy activity by pinpointing where the resource is and
importantly where it is not. Armed with reliable data and analysis,
companies and policymakers are able to identify and prioritize high-
density, low-carbon-intensive energy sources closer to existing
infrastructure and the end user, locating where offshore wind
facilities are best suited for harnessing the energy from wind,
prolonging the life of existing natural gas and petroleum assets, and
making it possible to store carbon beneath the surface. Geoscience
surveys provide the information governments and policymakers need to
make informed decisions in the best interest of their citizens
regarding accessing mainstay energy and alternative sources, as well as
developing low-carbon strategies. Currently, those data acquired by our
members make it possible for BOEM to publish resource assessments.
Nations cannot develop and provide opportunities for energizing their
economies without the geoscience industry, let alone implement their
energy evolution goals to make reliable, affordable energy available to
their citizens and meet Net Zero Emissions (NZE) policy ambitions.
We strongly support efforts to modernize the MMPA, which will help
to ensure more rigorous and comprehensive assessments of U.S. energy
supplies and a more efficient and predictable process for permitting
geoscience surveys. The energy geoscience and exploration industry
stands ready to partner in the discovery and development of energy
dense, low emissions sources of energy to power the world. Streamlining
the permitting process along with reducing the ability for outside
special interest groups to obstruct energy geoscience exploration is a
necessary step to ensure our continued development of energy resources
and low-carbon solutions for future generations in the U.S. We
appreciate your focus on these important matters to enhance the
country's energy development through common-sense modernization of the
MMPA and ESA
Sincerely,
Dustin Van Liew,
Vice President, Global Policy & Government Affairs
______
California Sea Urchin Commission
Folsum, CA
February 24, 2025
Hon. Harriet Hageman, Chairman
House Natural Resources Committee
Subcommittee on Water, Wildlife and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Dear Chair Hageman:
We are writing to express our views on the important work the
Subcommittee is conducting on February 26, 2025 to evaluate the
Implementation of the Marine Mammal Protection Act and the Endangered
Species Act.
The California Sea Urchin Commission (CSUC), a State Agency
Marketing Program represents California sea urchin divers and
processors. Our industry operates in State waters, but has been
systematically harmed by the indiscriminate actions taken by the
Federal Bureaucrats in the U.S. Fish & Wildlife Service (USFWS).
In 1986 we agreed to forfeit prime fishing grounds to support the
recovery of the threatened sea otter and, worked out a plan with the
USFWS to establish a new colony of sea otters at San Nicolas Island.
That agreement was codified in P.L. 99-625. The USFWS reneged on every
aspect of the agreement including placing significantly fewer animals
on the Island, without adjusting the success/failure criteria. If it
was deemed a failure the Service agreed they would remove all the
animals and place them back to their original colony. They also
promised to constrain strays. In return the USFWS provided relief from
incidental take and agreed to consult with the National Marine
Fisheries Service (NMFS) regarding other Endangered Species such as
Abalone in the No Otter Zone. The USFWS eventually declared the
translocation a failure even though some there was some population
growth, but failed to acknowledge the impact of moving fewer animals
than proposed. The Service decided to leave the animals in place even
though the agreement was to move them back. The USFWS acknowledged that
leaving the sea otters at San Nicolas Island would result in range
expansion and cause additional lost fishing opportunities. The Service
never consulted with the NMFS regarding endangered Abalone or other
species. By terminating P.L. 99-625 the Service exposed the sea urchin
and other fisheries to incidental take provisions of the MMPA. The CSUC
sued the Service which ultimately led us to the U.S. Supreme Court in
2018 with the underlying premise that the Service knew better and
changed the rules as they saw fit. We brought up the Chevron Deference
clause as the basis for the Service's actions. The Supreme Court did
not take our case. They did eventually decide a case by striking down
the Chevron Deference. Unfortunately, the 2024 Supreme Court Ruling
Loper Bright Enterprises v. Raimondo precludes us from seeking relief.
In 2020 the CSUC petitioned the USFWS to delist the Southern Sea
Otter as a threatened species due to their increasing population. Once
again the USFWS used their discretion to deny the petition by
continually changing the minimum population numbers, citing a lack of
genetic diversity and claiming they needed to update their Recovery
Plan.
In June 2022, a USFWS report, Feasibility Assessment: Sea Otter
Reintroduction to the Pacific Coast, was released in response to a
largely-unvetted Congressional mandate. In this report, the Agency lays
out the potential benefits of reintroducing sea otters to new areas of
the West Coast and identifies some--but not all--significant areas of
concern. For Southern Oregon and Northern California coastal
communities dependent on Dungeness crab, sea urchin, and other
shellfish, reintroducing sea otters in an area where they have been
absent for more than 100 years will spell big trouble. Our ports, our
charter, sport and commercial fisheries, our livelihoods depend on
robust fisheries management by State and Federal Agencies. Introducing
sea otters, especially as they would be protected under the Endangered
Species and Marine Mammal Protection Acts, creates another layer of
fisheries management problems. The USFWS only response to our concerns
was to offer to ``buy us out.'' This is totally unacceptable.
Lastly, the USFWS indiscriminately decided to regulate sea urchin
imports and exports even though Congress expressly exempted seafood and
shellfish products. The Service wrongly interprets sea urchin
econoderms used for human consumption as exempted from Congress'
intentions. Sea Urchin processors must obtain a federal import/export
license, submit to inspections after providing 48 hours of notice to
USFWS, and pay fees that can cost hundreds of dollars per shipment.
Very often the USFWS are late to the inspections and cause serious
economic losses due to the highly perishable nature of these products.
The CSUC stands ready to assist your Subcommittee's efforts to
review and find recommendations on how to improve implementation of the
Marine Mammal Protection Act and the Endangered Species Act.
Sincerely,
David Goldenberg,
Executive Director
______
California Pelagic Fisheries Association
San Diego, CA
February 22, 2025
Hon. Harriet Hageman, Chairman
House Natural Resources Committee
Subcommittee on Water, Wildlife and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Re: Evaluating the Implementation of the Marine Mammal Protection Act
and the Endangered Species Act
Dear Chair Hageman and subcommittee members:
The California Pelagic Fisheries Association (CPFA) is a San Diego-
based organization representing U.S. fishermen targeting wild, highly
migratory fish species (HMS) from the offshore waters of California. We
are using this opportunity to express our views on the regulatory
aspects of the Marine Mammal Protection Act (MMPA) and the Endangered
Species Act (ESA).
Over the years, our members have become further restricted in their
ability to harvest the healthy, HMS stocks such as the swordfish,
bigeye tuna, and Pacific bluefin tuna found between the U.S. West Coast
and Hawaii. These restrictions result from regulations imposed by the
Department of Interior's Fish and Wildlife Service and the Department
of Commerce's National Marine Fisheries Service under both the MMPA and
the ESA. We argue that the regulatory interpretations of the two
agencies fail to consider indirect effects created elsewhere from their
actions. Consequently, unaccountable regulations severely hamper our
members' ability to provide fresh seafood to U.S. consumers and
contribute to U.S. food security.
The regulations adopted by the agencies overlook that the Nation
consumes mostly imported seafood. Based on the source used, the USA
imports somewhere between 62-68\1\ to 90 percent \2\ of the seafood it
consumes. The ability to close that gap and reduce dependence on
foreign fishing sources will require policymakers understanding that
excessive restrictions on U.S. fishermen only transfer these impacts to
foreign fisheries operating under less stringent conservation
requirements than those imposed on U.S. harvesters. In other words, the
unintended displacement of ecosystem impacts curtailed by shortsighted
regulations results in reduced supply to the USA, shifts production to
other less regulated areas, and adds another factor affecting the
Nation's seafood trade deficit.
---------------------------------------------------------------------------
\1\ Gephart, J.A., Froehlich, H.E. and Branch, T.A. 2019. Opinion:
To create sustainable seafood industries, the United States needs a
better accounting of imports and exports. Proceedings of the National
Academy of Sciences, 116: 9142-9146.
\2\ Helvey, M., Pomeroy, C., Pradhan, N.C., Squires, D. and Stohs,
S. 2017. Can the United States have its fish and eat it too? Marine
Policy, 75: 62-67.
---------------------------------------------------------------------------
We urge the subcommittee to consider our comments in its
deliberations and to revisit the intentions of both statutes in the
light of U.S. food security. Protections for living marine resources
need to shift from a unilateral marine conservation perspective to one
that recognizes and accounts for distant ecological consequences.
Sincerely,
Dave Rudie,
President
______
Mystic Aquarium
Mystic, CT
Hon. Harriet Hageman, Chairman
House Natural Resources Committee
Subcommittee on Water, Wildlife and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairwoman Hageman:
Mystic Aquarium appreciates your subcommittee's evaluation of the
implementation of the Marine Mammal Protection Act (MMPA) and the
Endangered Species Act (ESA). Mystic Aquarium, located in historic
Mystic Connecticut, is home to thousands of species of marine mammals,
fish, invertebrates, and reptiles. Additionally, Mystic Aquarium holds
the sole letter of authorization from the National Marine Fisheries
Service for the response, rescue, and rehabilitation of federally
protected stranded marine mammals and sea turtles in Connecticut, Rhode
Island, and Fisher's Island, New York, over 1,000 miles of coastline,
and operates an Animal Rescue Clinic (ARC) that allows sick, entangled
or otherwise injured marine mammals and sea turtles to be rehabilitated
and returned to their ocean environment.
The health and welfare of the animals at Mystic Aquarium is always
our top priority. From the advanced environmental and water quality
systems to diagnostic services that can detect dangerous pathogens in
marine animals to our animal care and rescue efforts, our focus remains
on advancing the well-being of aquatic animals and their environments.
Every day, our researchers, veterinary team, animal rescue staff, and
citizen scientists are learning more about how to protect our ocean and
are putting the lessons learned into practice.
Mystic Aquarium is, at its foundation, a research, conservation,
and education institution. We are a leader in marine and environmental
research, addressing critical challenges to Connecticut's marine
ecosystems, biodiversity, and climate. The Aquarium's scientific
expertise is key to advancing knowledge and finding solutions to
pressing environmental issues. Expanding its research capabilities is
vital to keeping Connecticut at the forefront of scientific inquiry and
addressing emerging challenges.
Mystic Aquarium Conducts Science in three ways:
The Aquarium's living collection of marine mammals allows
for studies under controlled conditions (known
environmental, diet, and health parameters), training of
the animals for biological samples, and experimental non-
invasive research studies designed to answer relevant
questions to their care and management in aquaria and in
the wild.
The Aquarium's Animal Rescue Program allows for sampling
of wild animals upon admit through rehabilitation and
release to understand their biology and health.
Through collaborations, fieldwork is conducted on wild
counterparts in their natural environment.
To maintain and strengthen our capability to engage in essential
research for the benefit of the species in our care, it is essential to
enhance policies that support Mystic Aquarium's research capacity.
Among our most pressing policy concerns are those that challenge our
capability to maintain a healthy population of the various marine
mammals in our collection. While collecting marine mammals from the
wild population is rightly prohibited, the only means by which
aquariums such as Mystic can maintain a population of marine mammals
such as seals is through reproduction among the animals in our care.
Maintenance of rescued animals that cannot, for medical reasons be
returned to the wild does not provide a path to sustaining populations
in human care over time, if the permit authorizing the maintenance and
care for the rescued animal requires contraception
Unfortunately, permits issued by the National Marine Fisheries
Service (including sub-permits and letters of authority) often requires
the caretakers to give contraceptive drugs to the animal or separate
animals by gender. This is despite lack of a statutory foundation on
which to base these restrictions.\1\
---------------------------------------------------------------------------
\1\ 16 U.S.C. Sec. 1374 governs MMPA permits. It has no provision
authorizing NMFS to condition the issuance of permits on the animal
being subjected to contraception. To the contrary, the statute
anticipates that reproduction of animals covered by a permit will
occur, as it provides that no additional permits or authorizations are
necessary to care for the ``progeny'' of the animal covered by the
permit. Sec. 1374(c)(8)(A) (``No additional permit or authorization
shall be required to possess [or undertake other actions regarding] the
progeny of marine mammals taken [such as by rescue of a stranded
animal] or imported'' under a permit, if the progeny participate in
public display, research, or other appropriate conservation
activities). Some marine mammals are subject to both the MMPA and ESA.
The ESA permit provision, 16 U.S.C. Sec. 1539, authorizes the agency to
impose permit conditions, but does not mention contraception, and does
not displace the MMPA permit provision's more specific discussion of
marine mammal ``progeny.'' 16 U.S.C. Sec. 1539. Another MMPA section
authorizes NMFS to issue contracts to rescue stranded animals, but also
does not mention contraception 16 U.S.C. Sec. Sec. 1379(h)(1),
1421b(a).
---------------------------------------------------------------------------
We urge your subcommittee to ensure through your oversight
activities that permit conditions should not be add-ons to restrictions
in the MMPA, but instead should simply implement the restrictions
authorized in statute.
Sincerely,
Susette Tibus,
CEO
______
Ms. Hageman. I again want to thank the witnesses for their
valuable testimony and the Members for their questions.
The members of the Committee may have some additional
questions for the witnesses, and we will ask you to respond to
those in writing. Under Committee Rule 3, members of the
Committee must submit questions to the Subcommittee Clerk by 5
p.m. Eastern on Monday, March 3. The hearing record will be
held open for 10 business days for those responses.
Without objection, the Subcommittee stands adjourned.
[Whereupon, at 12:46 p.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Submissions for the Record by Rep. Hageman
National Marine Manufacturers Association
Washington, DC
March 5, 2025
Hon. Harriet Hageman, Chairman
House Natural Resources Committee
Subcommittee on Water, Wildlife and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Re: Oversight Hearing on ``Evaluating the Implementation of the Marine
Mammal Protection Act and the Endangered Species Act''
Dear Chair Hageman:
I write on behalf of the National Marine Manufacturers Association
(NMMA) to express support for the need to carefully reform the Marine
Mammal Protection Act (MMPA) and the Endangered Species Act (ESA). NMMA
appreciates the Subcommittee's dedication to evaluating this important
issue and considering opportunities to improve the implementation of
these critical programs to ensure federal decisions are supported by an
objective consideration of both the best available scientific evidence
and the full scope of a decision's potential impacts. NMMA appreciates
the recent hearing on these matters featuring witnesses with strong
legal expertise and practical knowledge related to implementing these
laws in the modern era. I request submission of this letter to the
hearing record to share the recreational marine industry's perspective.
Congress enacted the MMPA and the ESA in the 1970s with the goal of
conserving and protecting marine mammals and other endangered species.
Since its enactment, there have only been slight adjustments to the
laws, but none of the changes have accounted for the dramatic changes
over the last half-century with the increased ability to access our
treasured marine resources and technological advancements on the
vessels used to access these spaces. Given recent activities from the
federal entities responsible for managing public resources and several
ill-conceived proposed restrictions and rules that could significantly
harm public access, small businesses and the American economy, a review
of the congressional intent and commonsense reforms to this 50-year-old
law is warranted.
NMMA and its members fully support these statutes and the
objectives of conservation and species protection. However, too often
federal agencies responsible for implementing the MMPA and ESA have
failed to give a balanced review of the scientific data, and instead
have relied on incomplete information and flawed modeling that
intentionally overestimate the risk to a species from a particular
activity. This approach is often referred to as ``giving the benefit of
the doubt to the species.'' This is not sound science and does not
reflect reasoned decision-making or result in greater protection of
marine mammals and identified species. Unfortunately, the ultimate
outcome is needless bureaucratic red-tape and regulatory overreach that
often ignores significant negative impacts to the economy and everyday
Americans.
The North Atlantic right whale vessel strike reduction rule (VSR)
is just one example of this regulatory overreach. The National Marine
Fisheries Services (NMFS) promulgated the VSR in 2008, establishing a
10-knot speed limit for most vessels equal to or greater than 65 feet
in length in certain limited geographic areas along the Atlantic
Seaboard. The stated purpose of the rule was to reduce the likelihood
of death or injury of right whales due to vessel collisions. At that
time, the 2008 rule was intended to be temporary. NMFS, however, made
the rule permanent in 2013 and, in 2022, proposed to dramatically
expand the vessel speed requirements to (1) smaller vessels between 35
and 65 feet in length; and (2) a vastly expanded area encompassing
nearly the entire Atlantic Seaboard for eight months of the year.
The proposal received broad condemnation from states, local
governments, and the marine industries, including NMMA and the
recreational boating industry. NMFS's justification for rule was based
on flawed data and unrealistic modeling, reflecting a ``worst case''
analysis of risks to the species from smaller vessels and a skewed
projection of efficacy. Further, the Agency had crafted the proposal
without any prior engagement of the industries most impacted by the
rules, causing it to overlook the significant safety, operational,
economic, and privacy consequences of the rule. The result: an overly
stringent regulation with little actual benefit to right whales and
significant detrimental harm to boaters and coastal economies up and
down the East Coast.
Fortunately, the Biden Administration withdrew the ill-advised
proposal in January of this year. But it stands as a stark example of
the immediate need for MMPA and ESA reform. Changes must be undertaken
to ensure that, when implementing the MMPA and ESA, NMFS and other
federal agencies are required to (1) involve all stakeholders prior to
development of rules, including states, local governments, and impacted
industries; (2) undertake and objective and neutral view of the best
science and data available; and (3) consider all direct and indirect
socioeconomic impacts of an action.
NMMA appreciates the Subcommittee for its ongoing commitment to
address this critical issue that impacts all Americans and their
communities. We welcome the opportunity to work together to ensure that
the intent of the statutes are clarified and implemented in a manner
that both protects sensitive species and supports public access and
economic activity.
Sincerely,
Frank Hugelmeyer,
President and Chief Executive Officer
[all]